936 N.W.2d 762
Neb. Ct. App.2019Background
- Parents Steven S. and Jennette S. have a long history of Department involvement for neglect and abuse; prior children were removed and adopted, and Steven has a prior conviction for sexually abusing a niece.
- Children (born 2005, 2011, 2013) were removed October 6, 2017 after Dept. and law enforcement found the home unsanitary (strong ammonia/cat urine odors, filth) and concerns about medical care.
- Case plan ordered: psychological evaluations, parenting assessment, counseling, medication management, family support, supervised visitation; parents had limited progress and often failed to follow recommendations.
- Children made behavioral improvements in foster care but regressed after visits; there were allegations and disclosures raising concern about sexualized conduct involving Steven and Genevive.
- State moved to terminate parental rights July 20, 2018; termination hearing occurred September 27, 2018; county court terminated both parents’ rights December 14, 2018.
- Appeals consolidated; Nebraska Court of Appeals affirmed termination for both parents and addressed a cross-appeal briefing rule issue for Jennette.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutory grounds for termination under § 43-292(2) and (6) were proved (Steven) | State: Steven substantially, continuously, or repeatedly neglected children and failed reunification efforts. | Steven: Contended insufficient evidence of statutory grounds. | Court: Affirmed § 43-292(2) satisfied by clear and convincing evidence; no need to address (6). |
| Whether termination was in children’s best interests (Steven) | State: Children need permanency; Steven unfit and unlikely to improve soon. | Steven: Claimed strong, beneficial bond with children. | Court: Presumption of parental relationship overcome; termination is in children’s best interests. |
| Whether statutory grounds for termination under § 43-292(2) and (6) were proved (Jennette) | State: Jennette repeatedly neglected children, failed to remediate home and mental-health issues, and reunification efforts failed. | Jennette: Argued she made improvements and has bond with children. | Court: § 43-292(2) satisfied by clear and convincing evidence. |
| Whether termination was in children’s best interests (Jennette) | State: Children regress after visits; Jennette not fit, unlikely to become fit soon. | Jennette: Asserted bond and improvement in parenting. | Court: Termination in best interests; bond insufficient to overcome unfitness. |
| Whether cross-appeal briefing defect barred Jennette’s arguments | State/Appellant: briefing rules must be enforced. | Jennette: Brief identified her as “cross-appellant” on cover but lacked a separate “Brief on Cross-Appeal” section. | Court: Waived strict §2-109(D)(4) requirement here and considered Jennette’s cross-appeal because brief otherwise complied with appellant-brief rules. |
Key Cases Cited
- In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012) (juvenile appeals are reviewed de novo).
- In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010) (any single statutory ground in § 43-292 may support termination).
- In re Interest of Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015) (failure to provide an environment to which children can return can show substantial, continuous, repeated neglect).
- In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016) (parental relationship presumption and unfitness standard).
- In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999) (cross-appeal must be properly designated to obtain affirmative relief).
- Knaub v. Knaub, 245 Neb. 172, 512 N.W.2d 124 (1994) (court may consider arguments despite procedural defects where brief otherwise conforms).
- In re Interest of Chloe P., 21 Neb. App. 456, 840 N.W.2d 549 (2013) (failure to follow cross-appeal briefing rule may forfeit affirmative relief).
- In re Interest of Becka P. et al., 933 N.W.2d 873 (Neb. Ct. App. 2019) (appellate court may consider cross-appeal despite §2-109(D)(4) defect if assignments conform to appellant-brief rules).