Annotations

• 1. Basic requirements for termination

• 2. Abandonment

• 3. Neglect

• 4. Mental illness or deficiency

• 5. Rehabilitation or reunification plan

• 6. Out-of-home placement

• 7. Aggravated circumstances

• 8. Appeal

• 9. Constitutional rights

• 10. Miscellaneous

• 1. Basic requirements for termination

• Although the term "unfitness" is not expressly stated in this section, it derives from the fault and neglect subdivisions and from an assessment of the child's best interests. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• Parental unfitness means a personal deficiency or incapacity 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., 309 Neb. 565, 961 N.W.2d 516 (2021).

• The best interests and parental unfitness analyses in the context of a termination of parental rights case require separate, fact-intensive inquiries, but each examines essentially the same underlying facts. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• There is a rebuttable presumption that it is in the child's best interests to share a relationship with his or her parent. That presumption can only be overcome by a showing that the parent is either unfit to perform the duties imposed by the relationship or has forfeited that right. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• This section contains 11 separate subdivisions, any one of which can serve as a basis for terminating parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• To terminate parental rights, it is the State's burden to show by clear and convincing evidence both that one of the statutory bases exists and that termination is in the child's best interests. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021); In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

• Whereas the statutory grounds for termination 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); In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

• Before the State attempts to force a breakup of a natural family, over the objections of the parents and their children, the State must prove parental unfitness. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

• Regardless of the length of time a child is placed outside the home, it is always the State's burden to prove by clear and convincing evidence that the parent is unfit and that the child's best interests are served by his or her continued removal from parental custody. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

• Under this section, in order to terminate parental rights, the State must prove, by clear and convincing evidence, that one or more of the statutory grounds listed in this section have been satisfied and that termination is in the child's best interests. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

• The presumption that the best interests of a child are served by reuniting the child with his or her parent is overcome only when the parent has been proved unfit. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

• For a juvenile court to terminate parental rights under this section, it must find that termination is in the child's best interests and that one or more of the statutory grounds listed in this section have been satisfied. The State must prove these facts by clear and convincing evidence. In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).

• 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 this section exists and that termination is in the children's best interests. In re Interest of Joshua R. et al., 265 Neb. 374, 657 N.W.2d 209 (2003); In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000); In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012); In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

• Two requirements must be met before parental rights may be terminated. First, requisite evidence must establish the existence of one or more of the circumstances described in subsections (1) to (10) of this section. Second, if a circumstance designated in subsections (1) to (10) is evidentially established, there must be the additional showing that termination of parental rights is in the best interests of the child. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Phyllisa B., 265 Neb. 53, 654 N.W.2d 738 (2002); In re Interest of Azia B., 10 Neb. App. 124, 626 N.W.2d 602 (2001).

• In order to terminate parental rights with respect to a child on the basis of neglect under subsection (2) of this section, as amended, the State must prove by clear and convincing evidence that (1) the parents have substantially and continuously or repeatedly neglected and refused to give the child or a sibling of said child necessary parental care and protection and (2) termination of parental rights is in the best interests of the child. In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000).

• The language of this section imposes two requirements before parental rights may be terminated. First, requisite evidence must establish the existence of one or more of the circumstances described in subsections (1) to (10) of this section. Second, if a circumstance designated in subsections (1) to (10) of this section is evidentially established, there must be the additional showing that termination of parental rights is in the best interests of the child, the primary consideration in any question concerning termination of parental rights. Each of the requirements imposed by this section must be proved by clear and convincing evidence. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).

• A court may terminate parental rights when such action is in the best interests of the child and one or more of the statutorily specified conditions exist. The special needs of the child in question do not provide a basis for terminating parental rights if the record does not clearly and convincingly establish that the parent is not capable of providing the required special attention. In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998).

• Before parental rights may be terminated, requisite evidence must establish existence of one or more of the circumstances described in subsections (1) to (6) of this section, and there must be an additional showing that termination is in the best interests of the child. In re Interest of C.K., L.K., and G.K., 240 Neb. 700, 484 N.W.2d 68 (1992); In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).

• In order to terminate parental rights, it must be shown that termination of parental rights is in the child's best interests and that at least one of six bases provided in this section exists. In re Interest of J.B. et al., 235 Neb. 530, 455 N.W.2d 817 (1990).

• In order to terminate parental rights, the State must prove by clear and convincing evidence that termination of parental rights is in the child's best interests and that at least one of the six bases provided in this section exists. In re Interest of C.D.C., 235 Neb. 496, 455 N.W.2d 801 (1990).

• In order to terminate parental rights under this section, there must be clear and convincing evidence of the existence of one or more of the circumstances described in subsections (1) to (6), and if one of the conditions described in subsections (1) to (6) has been evidentially established, there must be an additional showing by clear and convincing evidence that termination of parental rights is in the child's best interests. In re Interest of J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).

• Language of this section imposes two requirements before parental rights may be terminated: First, requisite evidence must establish existence of one or more of the circumstances described in subsections (1) to (6); and second, there must be the additional showing that termination of parental rights is in the best interests of the child, the primary consideration in any question concerning termination of parental rights. The standard of proof for each of the two preceding requirements is evidence which is "clear and convincing." In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).

• A child's best interests are presumed to be served by having a relationship with his or her parent, which presumption is overcome only when the State has proved that the parent is unfit. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

• A termination of parental rights is a final and complete severance of the child from the parent and removes the entire bundle of parental rights, and parental rights should be terminated only in the absence of any reasonable alternative and as a last resort. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

• Any one of the bases for termination of parental rights codified by this section can serve as a basis for termination of parental rights when coupled with evidence that termination is in the best interests of the children. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

• Rather than requiring perfection of a parent, courts should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

• Although a statutory ground did exist to terminate the father's parental rights in this case, the State did not meet its burden to prove by clear and convincing evidence that the father was unfit or that it was in the child's best interests for the father's parental rights to be terminated at that time. Given the impact of the COVID-19 pandemic on institutional programming and availability, case manager communications, and visitations, along with the short timeframe before the father's release from incarceration, the father should have been given some additional time to show he could make progress on his case goals and parent his child before the State sought to terminate his parental rights. In re Interest of Xaiden N., 30 Neb. App. 378, 968 N.W.2d 856 (2021).

• In termination of parental rights cases, it is proper to consider a parent's inability to perform his or her parental obligations because of imprisonment and the nature of the crime committed, as well as the person against whom the criminal act was perpetrated. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

• The State must prove the facts by clear and convincing evidence when showing a factual basis exists under any of the 11 subdivisions of this section. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

• The term "unfitness" is not expressly used in this section but the concept is generally encompassed by the fault and neglect subsections of this section, and also through a determination of the child's best interests. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

• Any one of the 11 separate codified grounds can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Giavonna G., 23 Neb. App. 853, 876 N.W.2d 422 (2016).

• Only one ground for termination under this section need be proved in order to terminate parental rights. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

• A combination of the best interests of the child and evidence of fault or neglect on the part of the parent is required to terminate a parent's natural right to the custody of his or her own child. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).

• Whether termination of parental rights is in the best interests of a child involves consideration of two aspects: (1) what the child might gain or lose by a continued relationship with the parent and (2) what the child might gain by the prospects of new relationships which the termination might open for the child. In re Interest of Heather G. et al., 12 Neb. App. 13, 664 N.W.2d 448 (2003).

• Pursuant to this section, a court may terminate parental rights when such action is in the best interests of the child and one or more of the statutorily specified conditions exist. In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

• 2. Abandonment

• A court reviewing a termination of parental rights case on the ground of abandonment need not consider the 6-month period in a vacuum. Instead, the court may consider evidence of a parent's conduct, either before or after the statutory period, in determining whether the purpose and intent of that parent was to abandon his or her children. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).

• For purposes of subdivision (1) of this section, "abandonment" is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016); In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009); In re Interest of Austin G., 24 Neb. App. 773, 898 N.W.2d 385 (2017).

• Clear and convincing evidence supported the finding of abandonment where the father was initially involved in his child's life but then demonstrated no interest in the child or in exercising parental responsibilities. In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014).

• Incarceration does not excuse a parent's obligation to provide the child with a continuing relationship. In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014).

• Whether a parent has abandoned a child within the meaning of subdivision (1) of this section is a question of fact and depends upon parental intent, which may be determined by circumstantial evidence. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013); In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009); Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004); In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990); In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990); In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004); In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

• Pursuant to subsection (1) of this section, evidence of abandonment was insufficient when the mother had been involuntarily removed from the United States and had made efforts to return in order to participate in juvenile proceedings and to inquire about her children, despite her removal and the Department of Health and Human Services' failure to show that it had informed the mother how contact with her children could be accomplished. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

• Even though a juvenile court ordered a mother to have no visitation with her children approximately 7 weeks before the State filed a petition to terminate her parental rights based on abandonment, it was determined that the mother did abandon her children within the meaning of subsection (1) of this section where the mother failed to present any evidence which would show a continuing interest in the children or a genuine effort to maintain communication and a meaningful relationship with the children. In re Interest of Dustin H. et al., 259 Neb. 166, 608 N.W.2d 580 (2000).

• In the context of subsection (1) of this section, "abandonment" is defined as a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child. The question of abandonment is largely one of intent, to be determined in each case from all the facts and circumstances. If a parent voluntarily, but unreasonably or unjustifiably, departs from the state of residence of the parent's child or children, such departure may constitute parental abandonment of the child or children. Abandonment is not an ambulatory thing, the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child. Parental obligation requires a continuing interest in the child and a genuine effort to maintain communication and association with that child. Small tokens of parental affection for a child are an inadequate substitute for parental presence in a child's life. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).

• Mother abandoned her children when she voluntarily left the State of Nebraska temporarily to look for her common-law husband's children. In re Interest of C.K., L.K., and G.K., 240 Neb. 700, 484 N.W.2d 68 (1992).

• Parental incarceration may be considered in reference to abandonment as a basis for termination of parental rights under subsection (1) of this section. "Abandonment," for the purpose of subsection (1) of this section, is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and opportunity for the display of parental affection for the child. The question of abandonment is largely one of intent, to be determined in each case from all of the facts and circumstances. In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).

• A father who makes no effort to secure his parental rights for over 3 years has abandoned his child within the meaning of subsection (1) of this section. In re Interest of K.M.S., 236 Neb. 665, 463 N.W.2d 586 (1990).

• Whether a parent has abandoned a child within the meaning of subsection (1) of this section is a question of fact and depends on parental intent, which may be determined by circumstantial evidence. In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990).

• A parent who has voluntarily chosen to violate the law so as to have been convicted of five separate felonies may have placed himself in a position where he has effectively abandoned the child pursuant to subsection (1) of this section. In re Interest of B.A.G., 235 Neb. 730, 457 N.W.2d 292 (1990).

• Pursuant to subsection (1) of this section, if a parent voluntarily, but unreasonably or unjustifiably, departs from the state of residence of the parent's child or children, such departure may constitute parental abandonment of the child and cannot be used as an excuse for noncompliance with a court-ordered plan for parental rehabilitation. In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990).

• Under subsection (1) of this section, abandonment is an intentional withholding from the child, without just cause or excuse, by the parent of the parent's presence, care, love, and protection; maintenance; and the opportunity for the display of filial affection. Abandonment is not an ambulatory thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child. In re Interest of J.M.D., 233 Neb. 540, 446 N.W.2d 233 (1989).

• A specific condition of termination of parental rights under subsection (1) of this section is that the parent abandon the child for at least six months preceding the filing of the petition. In re Interest of M.B., R.P., and J.P., 222 Neb. 757, 386 N.W.2d 877 (1986).

• Evidence supported the juvenile court's finding that the father did not abandon the child when (1) the father actively sought custody and paid child support within the crucial 6-month period and (2) the father's delay in seeking intervention was due to just cause. In re Interest of Deztiny C., 15 Neb. App. 179, 723 N.W.2d 652 (2007).

• Pursuant to subsection (1) of this section, a court may terminate parental rights if the parent has abandoned the juvenile for 6 months or more immediately prior to the filing of the petition. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).

• Pursuant to subsection (1) of this section, the term "immediately prior" regarding abandonment means the time period determined by counting back 6 months from the filing date of the petition. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).

• A parent who has voluntarily chosen to violate the law, who has been imprisoned for the vast majority of his child's life, and who will continue to be imprisoned for several years may have placed himself in a position where he has effectively abandoned the child pursuant to subsection (1) of this section. A juvenile court may consider evidence of a parent's conduct prior to the birth of the child in proceedings to terminate parental rights pursuant to subsection (1) of this section. In re Interest of Theodore W., 4 Neb. App. 428, 545 N.W.2d 119 (1996).

• Evidence did not support juvenile court's finding that father abandoned children for 6 months prior to termination hearing, pursuant to subsection (1) of this section, when in fact visitations were discouraged by Department of Social Services until court order denying visitation was granted 2 months prior to termination hearing. In re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418 (1993).

• 3. Neglect

• The evidence supported terminating the parental rights of a mother who, due in part to continued drug use and an abusive relationship, failed to put herself in a position to have her children returned to her care within a reasonable time. In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).

• Past neglect, along with facts relating to current family circumstances which go to best interests, are all properly considered in a parental rights termination case under subdivision (2) of this section. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).

• One need not have physical possession of a child to demonstrate the existence of neglect contemplated by subsection (2) of this section. In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest of J.N.V., 224 Neb. 108, 395 N.W.2d 758 (1986).

• Trial court did not err in terminating parental rights where the children were traumatized to an extent that the mere presence of the parents sent them into a panic and the parent-child relationships were effectively destroyed by the neglect and cruelty of the parents. It is only when the State seeks to terminate parental rights pursuant to subsection (6) of this section that the State is required to prove that it has instituted a reasonable plan for rehabilitation of the parents and that they have failed to comply. In the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code, termination of parental rights is permissible when the basis for such termination is provided by clear and convincing evidence. In re Interest of S.B.E. et al., 240 Neb. 748, 484 N.W.2d 97 (1992).

• Because of mother's lack of insight and her lack of motivation to place the interests of her children ahead of her own, the trial court did not err in finding there was clear and convincing evidence to establish that the mother had substantially, continuously, and repeatedly neglected her children and had refused to give them the necessary parental care and protection. In re Interest of B.B. et al., 239 Neb. 952, 479 N.W.2d 787 (1992).

• A parent's failure to take proper measures to protect children from abuse by another furnishes sufficient cause to terminate parental rights under subsection (2) of this section. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).

• A parent's fright does not, by itself, excuse his or her failure to extricate children from a dangerous environment. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).

• A parent's failure to take proper measures to protect children from abuse by another furnishes sufficient cause to terminate parental rights under subsection (2) of this section. In re Interest of J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).

• When a parent fails to protect some but not all children from the physical abuse by another, a court may terminate parental rights in the children not physically abused. In re Interest of J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).

• Where poor housekeeping degenerates into a continuing health hazard, the best interests of the children require termination of parental rights. In re Interest of E.R., J.R., and A.R., 230 Neb. 646, 432 N.W.2d 834 (1988).

• Under this statute, to justify the termination of parental rights, the state must prove by clear and convincing evidence that a parent has substantially and continuously or repeatedly neglected the child. In re Interest of L.J., J.J., and J.N.J., 220 Neb. 102, 368 N.W.2d 474 (1985).

• While incarceration alone is not a basis for termination of parental rights, a parent's incarceration may be considered along with other factors in determining whether parental rights can be terminated based on neglect. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

• Under subdivision (2) of this section, the State must establish that the parental neglect required to terminate a parent's rights to a minor child was substantial and continuous or repeated; a handful of incidents, none of which resulted in permanent or serious injury to the children, is insufficient. In re Interest of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).

• Evidence supported the juvenile court's finding that the father did not neglect the child when (1) 5 years prior to the termination hearing, the father was sentenced to a jail term of 3 months and (2) throughout the child's life, the father provided continuing care for the child, did not refuse parental care, and worked to improve parenting skills. In re Interest of Deztiny C., 15 Neb. App. 179, 723 N.W.2d 652 (2007).

• In regard to subdivision (2) of this section, a finding of abuse or neglect may be supported where the record shows a parent's conduct over the child during the period when the abuse or neglect occurred and multiple injuries or other serious impairment of health has occurred which ordinarily would not occur in the absence of abuse or neglect. In re Interest of Chloe L. and Ethan L., 14 Neb. App. 663, 712 N.W.2d 289 (2006).

• Pursuant to subsection (2) of this section, termination of parental rights requires a finding that a parent has substantially and continuously or repeatedly neglected and refused to give the juvenile necessary parental care and protection. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

• Pursuant to subsection (2) of this section, lack of proper parental care of one child in a family can be a ground for termination of parental rights with respect to another child of the parents. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

• While a decision from the Nebraska Court of Appeals affirming a juvenile court's termination of parental rights may be further reviewed by the Nebraska Supreme Court, under subsection (2) of this section, the Court of Appeals' decision is final for collateral estoppel purposes. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

• 4. Mental illness or deficiency

• Where subdivision (5) of this section is one of multiple statutory grounds alleged to support termination of parental rights, the failure of the trial court to appoint a guardian ad litem for the parent is error, but the error may or may not be prejudicial, depending upon the specific facts of the case. Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014).

• Subsection (5) of this section authorizing termination of parental rights for mental illness or mental deficiency means only those mental illnesses or mental deficiencies which render the parents unable to discharge their parental responsibilities. In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000).

• Under subsection (5) of this section, when a natural parent suffers from a mental deficiency and cannot be rehabilitated within a reasonable period of time, the best interests of the child require that a final disposition be made without delay. A "mental deficiency", as used in subsection (5) of this section, includes an impairment in capacity such that a parent is unable to profit from instruction and acquire parenting skills. Under subsection (5) of this section, the State must show that termination of parental rights is in the best interests of the children. In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999).

• When a natural parent suffers from a mental deficiency and cannot be rehabilitated within a reasonable period of time, the best interests of the children require that a final disposition be made without delay. In re Interest of D.A.B. and J.B., 240 Neb. 653, 483 N.W.2d 550 (1992).

• A borderline personality disorder is a mental illness or deficiency for purposes of statute. In re Interest of B.M., 239 Neb. 292, 475 N.W.2d 909 (1991).

• A guardian ad litem appointed for a parent pursuant to subsection (5) of this section is entitled to participate fully in the proceeding to terminate parental rights. In re Interest of D.S. and T.S., 236 Neb. 413, 461 N.W.2d 415 (1990).

• The parental rights of a parent who is unable to discharge parental duties because of a mental illness or deficiency may be terminated under subdivision (5) of this section, while the parental rights of a parent who is unable to discharge parental duties because of a physical illness or deficiency may be terminated under subdivision (2) or (6) of this section; thus, the statutory scheme for termination of parental rights does not unconstitutionally differentiate between a parent with a mental deficiency and one with a physical deficiency. In re Interest of S.L.P., 230 Neb. 635, 432 N.W.2d 826 (1988).

• "Mental deficiency", as used in subdivision (5) of this section, includes an impairment in learning capacity such that one is unable to profit from instruction and acquire parenting skills. In re Interest of D.L.S., 230 Neb. 435, 432 N.W.2d 31 (1988).

• Appointment of a guardian ad litem for parents whose parental rights are sought to be terminated under subdivision (5) of this section is mandatory. Failure to appoint a guardian ad litem to protect the interests of such a parent is plain error which requires that the judgment be reversed. In re Interest of M.M., C.M., and D.M., 230 Neb. 388, 431 N.W.2d 611 (1988).

• While no absolute definition of the term "mental deficiency" as used in subdivision (5) of this section is adopted, where a personality disorder is manifested by acts of extraordinary violence, the mental condition certainly rises to the level of mental deficiency. In re Interest of J.D.M., 230 Neb. 273, 430 N.W.2d 689 (1988).

• Parental rights were properly terminated under subdivision (5) of this section where parents, who were both of limited intellectual ability, were unable to care for their daughter, who was developmentally and physically handicapped and required an extraordinary amount of care. In re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718 (1988).

• Supreme Court urges appointments of an attorney and of a guardian ad litem under subsection (5) of this section be separated. In re Interest of C.W., 226 Neb. 719, 414 N.W.2d 277 (1987).

• Record supported termination of parental rights as in the best interests of the child where the parent was unable due to a mental deficiency to discharge her responsibilities and there existed reasonable grounds to believe that this condition would continue for a prolonged and indefinite period. In re Interest of Fant, 214 Neb. 692, 335 N.W.2d 314 (1983).

• A trial court has discretionary authority to appoint a guardian ad litem in termination proceedings for a parent with a mental deficiency, regardless of whether mental illness or deficiency is pled as a ground for termination. In re Interest of Michael B. et al., 8 Neb. App. 411, 594 N.W.2d 674 (1999).

• The presence of a mental deficiency in a parent does not preclude the State from seeking, or the courts from granting, termination of parental rights under subsections (2) and (4) of this section. In re Interest of Michael B. et al., 8 Neb. App. 411, 594 N.W.2d 674 (1999).

• 5. Rehabilitation or reunification plan

• Reasonable efforts to reunify a family are required under the juvenile code only when termination is sought under subdivision (6) of this section. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• Reasonable efforts to preserve and reunify a family are required when the State seeks to terminate parental rights under subdivision (6) of this section. But reasonable efforts to reunify the family are required under the juvenile code only when termination is sought under subdivision (6) of this section, not when termination is based on other grounds. In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).

• Reasonable efforts to reunify a family are required under the juvenile code only when termination of parental rights is sought under subsection (6) of this section. In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009); In re Interest of Mya C. et al., 23 Neb. App. 383, 872 N.W.2d 56 (2015).

• The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to section 43-254, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of this section. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

• Pursuant to subsection (2) of this section, termination of parental rights under this subsection does not require proof that a parent has failed to comply with a rehabilitation plan. In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d 549 (2001).

• In order to terminate parental rights under subsection (6) of this section, the State must prove by clear and convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child. In order to terminate parental rights under subsection (6) of this section, the State is required to prove that the parents have been provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered plan and have failed to do so. The State is not required to show that noncompliance with a court-ordered rehabilitation plan is willful in order to prove that termination of parental rights should be ordered under subsection (6) of this section. In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999).

• Pursuant to subsection (6) of this section, the State need not prove in an action to terminate parental rights, that a parent's failure to comply with a court-ordered rehabilitation plan was willful. The purpose of subsection (6) of this section is to advance the best interests of the child by giving the juvenile court power to terminate parental rights where the grounds for adjudicating the child within section 43-247(3)(a) have not been corrected. Whether a parent is willful or not in his or her noncompliance with a rehabilitation plan is not directly relevant to this purpose. Mother's failure to comply with rehabilitation plan's requirement that she end contact with man who had sexually assaulted one of her children was sufficient evidence for termination of her parental rights under subsection (7) of this section. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).

• In order to terminate parental rights pursuant to subsection (6) of this section, the State is required to prove that the parents have been provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered plan and have failed to do so. Fact that parent partially complied with one provision of a rehabilitative plan does not prevent termination of his or her parental rights. In re Interest of L.H. et al., 241 Neb. 232, 487 N.W.2d 279 (1992).

• A rehabilitation plan is a court-ordered plan, judicially fashioned and judicially determined. The court may not delegate this authority to evaluators, counselors, social workers, child protection workers, or probation officers. In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992).

• In order to terminate parental rights, the requirement is not that all possible alternatives be exhausted, but that reasonable efforts be made to reunite the juvenile and his or her family. In re Interest of S.R., D.R., and B.R., 239 Neb. 871, 479 N.W.2d 126 (1992).

• Under subsection (6) of this section, the court is not limited to reviewing the efforts of the parent under the reunification plan last ordered by the court; rather, the court looks at the entire reunification program and the parent's compliance with the various plans involved in the program, as well as any effort not contained within the program which would bring the parent closer to reunification. In re Interest of L.J., M.J., and K.J., 238 Neb. 712, 472 N.W.2d 205 (1991).

• A period of 1 year 2 months is a reasonable amount of time for a parent to comply with a plan of rehabilitation. In re Interest of C.E.E., 238 Neb. 260, 469 N.W.2d 782 (1991).

• Under subsection (6) of this section, "reasonable efforts, under the direction of the court" means efforts in relation to a court-ordered plan for parental rehabilitation, not an extrajudicial agreement between a parent and an administrative agency. In re Interest of A.H., 237 Neb. 797, 467 N.W.2d 682 (1991).

• Under subsection (6) of this section, the fact of participation in certain elements of the court-ordered plan of reunification does not necessarily prevent the court from entering an order of termination where the parent has not made satisfactory progress toward reunification. In re Interest of A.M.Y., F.E.Y., and K.C.Y., 237 Neb. 414, 466 N.W.2d 93 (1991).

• Under subsection (6) of this section, there is no requirement that the parent's failure to comply with the plan for rehabilitation be willful. In re Interest of A.B. et al., 236 Neb. 220, 460 N.W.2d 114 (1990).

• It is only to terminate parental rights pursuant to subsection (6) of this section that the State is required to prove that the parents have been provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered plan and have failed to do so. In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274 (1990).

• A judgment terminating parental rights pursuant to subsection (6) of this section will be affirmed where the State has proved by clear and convincing evidence that (1) the parent has willfully failed to comply, in whole or in part, with a material provision of the rehabilitative plan, and (2) termination of parental rights is in the best interests of the children. In re Interest of L.K.Y. and A.L.Y., 235 Neb. 545, 455 N.W.2d 828 (1990); In re Interest of L.B., A.B., and A.T., 235 Neb. 134, 454 N.W.2d 285 (1990).

• Under subsection (6) of this section, participation in a court-ordered plan does not necessarily prevent the court from entering an order of termination where parent made no progress toward rehabilitation. In re Interest of M., 235 Neb. 61, 453 N.W.2d 589 (1990).

• Pursuant to subsection (6) of this section, a parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation presents an independent reason justifying termination of parental rights. A judgment terminating parental rights will be affirmed when the State has established by clear and convincing evidence that the parent has willfully failed to comply, in whole or in part, with a material provision of a plan, and termination of parental rights is in the best interests of the children. Where a parent is unable or unwilling to rehabilitate herself within a reasonable time, the best interests of the children require termination of the parental rights. In re Interest of C.C. and E.C., 234 Neb. 218, 450 N.W.2d 392 (1990).

• Under subsection (6) of this section, the record supports termination of parental rights where parent willingly failed to comply with reasonable plan of rehabilitation. In re Interest of R.T. and R.T., 233 Neb. 483, 446 N.W.2d 12 (1989).

• Regarding parental compliance with a court-ordered rehabilitative plan, under subsection (6) of this section, as a ground for termination of parental rights, the State must prove by clear and convincing evidence that the parent has willfully failed to comply in whole or in part with a reasonable provision material to the rehabilitative objective of the plan and the termination of parental rights is in the best interests of the child. In re Interest of Q.R. and D.R., 231 Neb. 791, 438 N.W.2d 146 (1989).

• Under subsection (6) of this section, a juvenile court has the discretionary power to prescribe a reasonable plan for parental rehabilitation to correct the conditions underlying the adjudication that a child is a juvenile within the Nebraska Juvenile Code. This court has held that to terminate parental rights under subsection (6) of this section, the State must prove by clear and convincing evidence that the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and termination of parental rights is in the best interests of the child. In re Interest of P.M.C., 231 Neb. 701, 437 N.W.2d 786 (1989).

• A parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation designed to reunite the parent and child presents an independent reason justifying termination of parental rights under subdivision (6) of this section. The state must prove this failure by clear and convincing evidence. In re Interest of P.D., 231 Neb. 608, 437 N.W.2d 156 (1989).

• A parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation designed to reunite the parent and child presents an independent reason justifying termination of parental rights under subdivision (6) of this section. In re Interest of D.L.S., 230 Neb. 435, 432 N.W.2d 31 (1988).

• Regarding parental noncompliance with a court-ordered rehabilitative plan, under subsection (6) of this section, as a ground for termination of parental rights, the State must prove by clear and convincing evidence that the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and, in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child. In re Interest of A.Z., B.Z., and R.Z., 230 Neb. 291, 430 N.W.2d 901 (1988).

• As grounds for termination, the State must prove by clear and convincing evidence that the parent has willfully failed to comply with a reasonable provision material to the rehabilitative objective of the plan, and, in addition to the parent's noncompliance, termination is in the best interests of the child. In re Interest of L.O. and B.O., 229 Neb. 889, 429 N.W.2d 388 (1988).

• Regarding parental noncompliance with a court-ordered rehabilitation plan under subsection (6) of this section as a ground for termination of parental rights, the State must prove by clear and convincing evidence that (1) the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) termination of parental rights is in the best interests of the child. In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).

• When a rehabilitation plan is implemented, the plan must be reasonable and conducted under the direction of the juvenile court before failure to comply with the plan can be an independent reason for termination. In re Interest of K.L.N. and M.J.N., 225 Neb. 595, 407 N.W.2d 189 (1987).

• The primary consideration in termination proceedings is the best interests of the child and, while termination of parental rights should be considered as a last resort, this section requires that the best interests of the child and evidence of fault or neglect be considered together in reaching such a determination. The failure to comply with a court-ordered plan of rehabilitation, where a parent is ordered to make reasonable efforts to rehabilitate, presents an independent reason justifying termination of parental rights. In re Interest of J.W., 224 Neb. 897, 402 N.W.2d 671 (1987).

• The failure of a parent to follow a rehabilitation plan which is not conducted under the direction of the court is not sufficient reason to terminate parental rights under this statute. In re Interest of M.L.B., 221 Neb. 396, 377 N.W.2d 521 (1985).

• Parental rights terminated of mother who failed to comply with a plan of rehabilitation and who suffered from a personality disorder likely to last for an indefinite period. In re Interest of R.L.T., 221 Neb. 251, 376 N.W.2d 310 (1985).

• The state need not show harm to the child in order to terminate parental rights. The failure of the parent to follow a plan of rehabilitation is sufficient grounds for termination. In re Interest of S.P., N.P., and L.P., 221 Neb. 165, 375 N.W.2d 616 (1985).

• The trial court did not abuse its discretion by terminating the parental rights of a parent who failed to rehabilitate herself within a reasonable time after the adjudicative hearing. In re Interest of S.W., 220 Neb. 734, 371 N.W.2d 726 (1985).

• In order to terminate parental rights under subdivision (6) of this section, the State must prove by clear and convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

• Reasonable efforts to reunify a family are required under the juvenile code only when termination is sought under subdivision (6) of this section. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

• Pursuant to subsection (6) of this section, termination of parental rights requires a finding that following a determination that the juvenile is one as described in subsection (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. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

• 6. Out-of-home placement

• Out-of-home placement is itself defined by the Legislature as an independent ground for termination, since children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• Subdivision (7) of this section operates mechanically and, unlike the other subdivisions of this section, does not require the State to adduce evidence of any specific fault on the part of a parent. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• Termination based on the ground that a child has been in out-of-home placement for 15 of the past preceding 22 months is not in a child's best interests when the record demonstrates that a parent is making efforts toward reunification and has not been given a sufficient opportunity for compliance with a reunification plan. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• The period of 15 out of 22 months' out-of-home placement as a ground for termination of parental rights was set by the Legislature as a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum degree of fitness. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• Time spent by juveniles in a guardianship placement counted toward time spent in an out-of-home placement under subsection (7) of this section. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).

• The fact that a child has been placed outside the home for 15 or more of the most recent 22 months does not demonstrate parental unfitness. The placement of a child outside the home for 15 or more of the most recent 22 months under subsection (7) of this section merely provides a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

• For the purpose of a petition to terminate parental rights, the placement of a child outside the home for 15 or more of the most recent 22 months under subsection (7) of this section merely provides a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

• The fact that a child has been placed outside the home for 15 or more of the most recent 22 months under subsection (7) of this section does not demonstrate parental unfitness for the purpose of a termination of parental rights. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

• In a juvenile proceeding to terminate parental rights, the evidence adduced to prove termination on any statutory ground other than subsection (7) of this section is highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse. In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).

• Subsection (7) of this section operates mechanically and, unlike the other subsections of this section, does not require the State to adduce evidence of any specific fault on the part of a parent. Thus, it is in the context of analyzing the best interests of the juvenile that courts must respect a parent's commanding interest in the accuracy and justice of the decision to terminate parental rights. Where termination of parental rights is sought solely pursuant to subsection (7), proof that termination is nonetheless in a juvenile's best interests will, necessarily, require clear and convincing evidence of circumstances as compelling and pertinent to a child's best interests as those enumerated in the other subsections of this section. In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).

• Pursuant to subsection (7) of this section, termination based on the ground that a child has been in out-of-home placement for 15 of the preceding 22 months is not in a child's best interests when the record demonstrates that a parent is making efforts toward reunification and has not been given a sufficient opportunity for compliance with a reunification plan. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

• The 15-month condition set forth in subsection (7) of this section serves the purpose of providing a reasonable timetable for parents to rehabilitate themselves. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

• Subdivision (7) of this section operates mechanically and does not require the State to adduce evidence of any specific fault on the part of the parent. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

• Generally, when termination is sought under subsections of this section other than subsection (7), the evidence adduced to prove the statutory grounds for termination will also be highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse; however, this is not always the case, as statutory grounds are based on a parent's past conduct, but the best interests element focuses on the future well-being of the child. In re Interest of Mya C. et al., 23 Neb. App. 383, 872 N.W.2d 56 (2015).

• Generally, when termination of parental rights is sought under subsections of this section other than subsection (7), the evidence adduced to prove the statutory grounds for termination will also be highly relevant to the best interests of the juvenile. In re Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012).

• Pursuant to subsection (7) of this section, termination of parental rights requires a finding that the juvenile has been in an out-of-home placement for 15 or more months of the most recent 22 months. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

• 7. Aggravated circumstances

• The examples provided under subsection (9) of this section are not an exhaustive list. Aggravated circumstances also exist when a child suffers severe, intentional physical abuse. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012).

• Aggravated circumstances exist when a child suffers severe, intentional physical abuse. In re Interest of Ky'Ari J., 29 Neb. App. 124, 952 N.W.2d 715 (2020).

• Where the circumstances created by the parent's conduct create an unacceptably high risk to the health, safety, and welfare of the child, they are aggravated. In re Interest of Ky'Ari J., 29 Neb. App. 124, 952 N.W.2d 715 (2020).

• Subdivision (9) of this section allows for terminating parental rights when the parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

• Whether aggravated circumstances under subdivision (9) of this section exist is determined on a case-by-case basis. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

• Under subdivision (9) of this section, the "aggravated circumstances" required for terminating parental rights are based on severe, intentional actions on the part of the parent; a single act of negligent conduct is insufficient. In re Interest of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).

• When parental rights are terminated based on the parent subjecting the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse, pursuant to subsection (9) of this section, a prior adjudication order is not required. In re Interest of Gavin S. & Jordan S., 23 Neb. App. 401, 873 N.W.2d 1 (2015).

• 8. Appeal

• A parent's failure to appeal from an adjudication order, dispositional order, or other final, appealable order leading to the termination of parental rights does not preclude an appellate court from reviewing the proceedings for a denial of due process in an appeal from a termination order. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

• The right to appeal from orders of a county court sitting as a juvenile court, insofar as that right is vested in the child's custodian, is vested only in individuals or entities having legal custody of such a child, and not in those persons having only possession of the child. In re Interest of S.R., 217 Neb. 528, 352 N.W.2d 141 (1984).

• If an appellate court determines that the lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds, the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground. In re Interest of Giavonna G., 23 Neb. App. 853, 876 N.W.2d 422 (2016).

• In regard to subdivision (10) of this section, conviction and sentence are not considered final judgments until after appeal, if there is indeed an appeal. In re Interest of Jamie M., 14 Neb. App. 763, 714 N.W.2d 780 (2006).

• Appellate courts must be particularly diligent in the de novo review of whether termination of parental rights is in the juvenile's best interests in cases where termination is sought only pursuant to subdivision (7) of this section, and the record must contain clear and convincing evidence to support the best interests determination. In re Interest of Skye W. & McKenzie W., 14 Neb. App. 74, 704 N.W.2d 1 (2006).

• 9. Constitutional rights

• Showing that termination of parental rights is in the best interests of the child is necessarily a particularly high bar, since a parent's right to raise his or her children is constitutionally protected. The Due Process Clause of the U.S. Constitution would be offended if a state were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• That the foster parents might provide a higher standard of living does not defeat the parent's right to maintain the constitutionally protected relationship with his or her child. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• So long as a parent was afforded due process of law, a defect during the adjudication phase does not preclude consideration of termination of parental rights. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).

• The interest of the parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

• Whether termination of parental rights is in a child's best interests is subject to the overriding recognition that the relationship between parent and child is constitutionally protected. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

• This section is not unconstitutional; adequate safeguards are provided to ensure that parental rights are not terminated based solely upon the length of time children are in an out-of-home placement. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Phyllisa B., 265 Neb. 53, 654 N.W.2d 738 (2002).

• An incarcerated parent does not need to be physically present at a hearing to terminate parental rights, so long as the parent is afforded procedural due process. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

• Whether a parent who is incarcerated or otherwise confined in custody has been afforded procedural due process for a hearing to terminate parental rights is within the discretion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

• A defective adjudication does not preclude a termination of parental rights under subsections (1) through (5) of this section, because no adjudication is required to terminate pursuant to those subsections, as long as due process safeguards are met. In re Interest of Keisha G., 21 Neb. App. 472, 840 N.W.2d 562 (2013).

• In a hearing on the termination of parental rights without a prior adjudication hearing, where such termination is sought under subsections (1) through (5) of this section, such proceedings must be accompanied by due process safeguards. In re Interest of Aaliyah M. et al., 21 Neb. App. 63, 837 N.W.2d 98 (2013).

• If a parent has been afforded procedural due process for a hearing to terminate parental rights, allowing a parent who is incarcerated or otherwise confined in custody of a government to attend the termination hearing is within the discretion of the trial court, whose opinion on appeal will be upheld in the absence of an abuse of discretion. In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).

• Parental physical presence is unnecessary for a hearing to terminate parental rights, provided that the parent has been afforded procedural due process for the hearing. In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).

• In a hearing on the termination of parental rights without a prior adjudication, where such termination is sought under subsections (1) through (5) of this section, such proceedings must be accompanied by due process safeguards, as statutory provisions cannot abrogate constitutional rights. In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001).

• Termination of parental rights is protected by due process under the U.S. and Nebraska Constitutions, and in the absence of a valid waiver by all parties to such proceedings, a verbatim transcript of those proceedings shall be made and preserved in the separate juvenile court. In re Interest of M.W. and R.W., 1 Neb. App. 378, 497 N.W.2d 396 (1992).

• 10. Miscellaneous

• Parental obligation requires a continuing interest in the children and a genuine effort to maintain communication and association with the children. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

• Although a therapist testified that the mother and child had a bond and recommended that a relationship between them continue, the State adduced clear and convincing evidence that termination of the mother's parental rights was in the child's best interests. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016).

• Termination of a mother's parental rights was in her children's best interests where there was evidence of years of instability and neglect, which could not be overcome by the mother's recent period of stability. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).

• The "beyond a reasonable doubt" standard in subsection (6) of section 43-1505 does not extend to this section's best interests element. Instead, the State must prove by clear and convincing evidence that terminating parental rights is in the child's best interests; this need not include testimony of a qualified expert witness. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

• The State cannot prove that termination of parental rights is in a child's best interests by implementing a case plan that precludes a parent's compliance. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

• The fact that children benefit from foster placement after they are removed from the custody of a natural parent does not lend support to an argument that termination of parental rights is not in their best interests. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights. A significant piece of evidence bearing on the issue of whether termination of parental rights is in the best interests of the child is the fact that while in foster care, the child's "arrested state of development" at the time of removal from custody is being reversed. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. The concept of permanency is not simply a "buzzword", but, rather, a recognition that when there is no reasonable expectation that a natural parent will fulfill his or her responsibility to a child, the child should be given an opportunity to live with an adult who has demonstrated a willingness and ability to assume that responsibility and has a permanent legal obligation to do so. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).

• Through the plain language of this section, the Legislature has demonstrated its intent that under certain circumstances, prior court action or an adjudication may be required before parental rights can be terminated. The plain and ordinary meaning of this section and section 43-291, taken together, is that parental rights may be terminated in an original proceeding. In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).

• Pursuant to subsection (3) of this section, a court cannot deny a natural parent custody based on the fact that he or she has limited resources or financial problems, or because the parent's lifestyle is different or unusual. Pursuant to subsection (4) of this section, the children need not be present while the parent commits acts described in the section for this section to apply. Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998).

• In the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code, termination of parental rights is permissible when the basis for such termination is proved by clear and convincing evidence. In re Interest of M.P., 238 Neb. 857, 472 N.W.2d 432 (1991); In re Interest of C.C., 226 Neb. 263, 411 N.W.2d 51 (1987); In re Interest of T.C., 226 Neb. 116, 409 N.W.2d 607 (1987).

• A juvenile court may terminate parental rights under the various grounds specified in subsections (1) through (5) of this section without providing the parent with a reasonable opportunity to rehabilitate himself or herself. In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274 (1990).

• Subsection (6) of this section does not require the court to proceed under that subsection whenever a determination has been made under section 43-247; the court may terminate parental rights when it appears that any one of the six conditions under this section has been met. In re Interest of J.A. and T.A., 229 Neb. 271, 426 N.W.2d 277 (1988).

• Clear and convincing evidence was before the trial court to show that reasonable efforts, under the court's direction, had failed to correct the conditions which had led to the determination that the child in question was a child as defined in section 43-247(3)(a). In re Interest of J.W., 224 Neb. 897, 402 N.W.2d 671 (1987).

• The juvenile court may consider the following factors when determining whether to allow an incarcerated parent to be present at a hearing to terminate parental rights: (1) the anticipated delay, (2) the need for prompt disposition, (3) the length of time during which the case has been pending, (4) the expense of transportation, (5) the inconvenience or detriment to the parties or witnesses, (6) the potential danger or security risk, (7) the availability of the parent's testimony through means other than physical attendance, and (8) the best interests of the child. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

• If an appellate court determines that a lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds set forth in this section, the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

• In Nebraska statutes, the bases for termination of parental rights are codified in this section. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

• This section provides 11 separate conditions, any one of which can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

• Without other evidence of a parent's neglect of his or her children, incarceration alone is insufficient to justify termination of parental rights under subdivision (2) of this section. In re Interest of Lizabella R., 25 Neb. App. 421, 907 N.W.2d 745 (2018).

• The State failed to prove that the parent's drug use was detrimental to the child, and thus, there was insufficient evidence to support a termination of parental rights under subsection (4) of this section. In re Interest of Keisha G., 21 Neb. App. 472, 840 N.W.2d 562 (2013).

• The Indian Child Welfare Act's requirement of "active efforts" is separate and distinct from the "reasonable efforts" provision of subsection (6) of this section and therefore requires the State to plead active efforts by the State to prevent the breakup of the family. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009).

• The plain language of subsection (10) of this section does not require a criminal conviction or proof beyond a reasonable doubt that a parent has committed voluntary manslaughter or murder of his or her child, but merely clear and convincing evidence that the parent "committed" murder or voluntary manslaughter of his or her child. In re Interest of Anthony V., 12 Neb. App. 567, 680 N.W.2d 221 (2004).

• Although there may have been no prior juvenile court action, including adjudication, the juvenile court acquires jurisdiction to terminate parental rights when a motion to terminate parental rights containing the grounds for termination is filed under subsections (1) through (5) of this section. In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001).

• The essence of issue preclusion is that once parents have litigated their treatment of their child's sibling in an adjudication proceeding, they are not entitled to another opportunity to litigate the same issue in a subsequent proceeding involving the child under subsection (2) of this section. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

• The State may use factual findings from a sibling's case, when proved true by clear and convincing evidence, as a basis for termination of parental rights to a sibling. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

• Section 43-1505 provides specific statutory requirements for proving a case for termination of parental rights in a juvenile court action involving an Indian child, and the petition for termination of parental rights must include sufficient allegations of the requirements of section 43-1505 as well as this section to survive a demurrer. In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001).

• In order to justify termination of parental rights pursuant to subsection (6) of this section, the State must prove by clear and convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable provision material to the rehabilitation objective of the plan and (2) that termination of parental rights is in the best interests of the child. In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

• Parental incarceration is a factor which may be considered in determining whether parental rights should be terminated. A parent's failure to change a lifestyle of chemical dependency may constitute neglect under subsection (2) of this section. In re Interest of Joshua M. et al., 7 Neb. App. 872, 587 N.W.2d 131 (1998).

• A parent's parental rights may not be terminated pursuant to the provisions of this section based solely upon the parent's refusal to waive his or her constitutional and statutory protections against self-incrimination. In re Interest of Clifford M. et al., 6 Neb. App. 754, 577 N.W.2d 547 (1998).

• In the absence of an adjudication petition and hearing in compliance with section 43-247, an order purporting to terminate parental rights pursuant to this section is a nullity. In re Interest of Joelyann H., 6 Neb. App. 472, 574 N.W.2d 185 (1998).