In re Interest of Chance J.

because such would not affect the validity of the note. Thus,
the evidence of the alleged verbal forgiveness of the debt was
not admissible as an exception to the hearsay rule, and such
was properly excluded by the trial court.
[5] Although our reasons for concluding that the testimony
was not admissible are somewhat different than the district
court’s, there was no error when the trial court sustained
Haynes’ hearsay objection. A proper result will not be reversed
merely because it was reached for the wrong reason. See
Thornton v. Grand Island Contract Carriers, 262 Neb. 740,
634 N.W.2d 794 (2001). We affirm the decision of the dis-
trict court.
A ffirmed.
in re interest of C hAnCe J., A Child under 18 yeArs of Age .
stAte of nebrAskA, Appellee , v.
A ndrew J., AppellAnt.
768 N.W.2d 472
Filed June 2, 2009. 	No. A-08-962.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
3. Parental Rights. The right of parents to maintain custody of their child is a
natural right, subject only to the paramount interest which the public has in the
protection of the rights of the child.
4. Constitutional Law: Parental Rights: Due Process. The fundamental liberty
interest of natural parents in the care, custody, and management of their child is
afforded due process protection, and state intervention to terminate the parent-
child relationship must be accomplished by fundamentally fair procedures meet-
ing the requisites of the Due Process Clause.
5. Parental Rights: Evidence: Proof. Before parental rights may be terminated, the
evidence must clearly and convincingly establish the existence of one or more
of the statutory grounds permitting termination and that termination is in the
juvenile’s best interests.
6. Parental Rights: Abandonment: Intent: Words and Phrases. For purposes of
Neb. Rev. Stat. § 43-292(1) (Reissue 2008), abandonment has been described as
a parent’s intentionally withholding from a child, without just cause or excuse,
iN Re iNTeReST oF CHANCe J. 	645
Cite as 17 Neb. App. 645
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

the parent’s presence, care, love, protection, maintenance, and opportunity for the
display of parental affection for the child.
7. Parental Rights: Abandonment: Time. Neb. Rev. Stat. § 43-292(1) (Reissue
2008) provides that there are grounds for termination of parental rights when a
parent has abandoned the juvenile for 6 months or more immediately prior to the
filing of the petition.
8. ____: ____: ____. The time period for abandonment in Neb. Rev. Stat. § 43-292(1)
(Reissue 2008) is determined by counting back 6 months from the date the juve-
nile petition was filed.
9. Parental Rights: Words and Phrases. Neglect, in the context of Neb. Rev. Stat.
§ 43-292(2) (Reissue 2008), requires that the parents substantially and continu-
ously or repeatedly neglected and refused to give the juvenile necessary parental
care and protection.
10. Juvenile Courts: Parental Rights. Neb. Rev. Stat. § 43-292(9) (Reissue 2008)
provides statutory grounds for termination of parental rights if the juvenile court
finds that the parent has subjected the child to aggravated circumstances, includ-
ing, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.
11. Parental Rights: Abandonment. Neb. Rev. Stat. § 43-283.01(4)(a) (Reissue
2008) excuses reasonable efforts when the parent has subjected the juvenile to
aggravated circumstances, including, but not limited to, abandonment.
12. Parental Rights: Evidence: Proof. in order to terminate parental rights, the State
must prove by clear and convincing evidence that one of the statutory grounds
enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2008) exists and that termina-
tion is in the child’s best interests.
Appeal from the Separate Juvenile Court of Douglas County:
vernon dAniels, Judge. Reversed and remanded for further
proceedings.
Patrick A. Campagna and Justin A. Roberts, Senior Certified
Law Student, of Lustgarten & Roberts, P.C., L.L.o., for
appellant.
Donald 	W. 	Kleine, 	Douglas 	County 	Attorney, 	Jennifer
Chrystal-Clark, and Carolyn H. Curry, Senior Certified Law
Student, for appellee.
inbody, Chief Judge, and irwin and sievers, Judges.
per C uriAm.
i. iNTRoDUCTioN
Andrew J. appeals the Douglas County Separate Juvenile
Court’s termination of his parental rights to Chance J. The
juvenile court terminated Andrew’s parental rights pursuant
646 	17 NeBRASKA APPeLLATe RePoRTS

to Neb. Rev. Stat. § 43-292(1), (2), and (9) (Reissue 2008).
For the following reasons, we reverse, and remand for fur-
ther proceedings.
ii. STATeMeNT oF FACTS
1. bACkground of C hAnCe’s mother
on April 17, 2006, Miranda J. gave birth to Chance. in
June 2007, the State initiated juvenile proceedings, alleg-
ing that Chance came within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2004). Chance was removed from
Miranda’s home and placed with a foster family. on February
14, 2008, the State filed a motion to terminate Miranda’s
parental rights. After a hearing, the juvenile court found by
clear and convincing evidence that Chance was a child within
§ 43-292(1), (2), and (9) and that it was in Chance’s best
interests that Miranda’s parental rights be terminated. Miranda
appealed to this court in case No. A-08-619, and we subse-
quently affirmed the juvenile court’s termination of Miranda’s
parental rights in a memorandum opinion filed on october
28, 2008.
2. bACkground of C hAnCe’s fAther
Miranda 	married 	Chance’s 	father, 	Andrew, 	in 	omaha,
Nebraska, on February 6, 2002. in 2004, Miranda and Andrew
moved 	to 	Bowling 	Green, 	Kentucky, 	where 	they 	resided
together until approximately June or July 2005. Andrew testi-
fied that the two separated because he found out Miranda was
prostituting and using drugs and that he did not see her again
until April 2006, when Andrew’s grandmother, from omaha,
contacted Andrew and informed him that Miranda was going
to have a baby. To determine whether the baby was his child,
Andrew traveled from Kentucky to the hospital in California
where Miranda was scheduled to give birth.
Andrew explained that after Chance was born, the hospi-
tal room atmosphere was “awkward,” because when a nurse
brought the baby to him, “the baby was white, had blue eyes,
and red hair.” Miranda asked what was wrong and, when she
saw Chance, indicated that Chance must have been “‘a trick’s
baby.’” Because Andrew is black, he believed that Chance was
iN Re iNTeReST oF CHANCe J. 	647
Cite as 17 Neb. App. 645

not his child and returned to Kentucky. There is no father’s
name listed on Chance’s birth certificate.
3. C hAnCe’s bACkground
At the time of trial, Chance was nearly 21⁄2 years old. When
juvenile proceedings were first initiated, Chance was placed
with a licensed foster parent for approximately 6 months. At
Andrew’s termination hearing, this foster parent testified that
when she received Chance, he was about 1 year old and she
believed he was delayed in his development because he could
not walk. She testified that Amy Watson, the Department of
Health and Human Services (DHHS) caseworker, told her
Andrew was Chance’s father, but that in the 6 months of place-
ment in that foster home, there were no visitations and no con-
tact from Andrew.
Chance was then transferred to a second foster home, where
he has remained. Chance’s second foster mother testified that
Chance had been with her family for nearly a year. She testi-
fied that she believed Chance was developmentally delayed
when he came to her home and that, at 18 months old, Chance
was barely walking, was unable to communicate, and “just sat
there.” She described Chance as not interacting well, including
not wanting to be held or touched. The second foster mother
was concerned about Chance’s behavior and quit her job to
stay at home with him, explaining that he was afraid to be at
daycare. She took Chance to a pediatric specialist to test for
autism and also to the Munroe-Meyer institute in omaha. She
also initiated testing with omaha Public Schools and secured
services for Chance, such as early childhood development
and speech therapy. The service providers come to Chance’s
second foster home and also to Chance’s daycare to work
with him daily. She testified that Chance is still “delayed,” but
has adjusted very well, and is now walking, talking, and rid-
ing bikes.
Chance’s second foster mother explained that Chance has
had no visitation with Andrew and has not received any form
of contact from him. in late July 2008, she was instructed that
Chance would be having visitation with Andrew, but the visita-
tion never took place and the second foster mother was never
648 	17 NeBRASKA APPeLLATe RePoRTS

contacted. She testified that she and her husband would like to
adopt Chance if Andrew’s parental rights were terminated.
4. loCAting C hAnCe’s fAther
in June 2007, when Miranda and Chance became involved
in juvenile proceedings, a DHHS initial assessment worker,
Kris Kircher, was assigned to Chance. At the termination hear-
ing for Andrew, Kircher testified that from the earliest involve-
ment with DHHS, Miranda had consistently informed her that
Andrew was Chance’s father. Kircher, through Miranda, child
support databases, and department of corrections Web sites,
was able to find three addresses for Andrew, to which Kircher
sent letters on June 4, 2007, informing Andrew that he was
the alleged father of Chance and that a juvenile case had been
filed. The letters included the case docket number, Miranda’s
name, and contact telephone numbers. one of the three let-
ters was sent to Andrew at an address on Richland Drive
in Bowling Green. Andrew testified that he resided at this
address during this time, but received no such letter. Kircher
testified that the letters were sent by certified mail, but no
evidence was adduced that the letters had been either received
or returned. Kircher explained that she had not attempted to
contact Andrew by telephone, although she had been present
at a visitation wherein Miranda claimed to be on the tele-
phone with Andrew discussing Chance. No evidence was ever
presented that Andrew was actually on the telephone during
that call.
Shortly thereafter, the case was transferred to the DHHS
caseworker, Watson, who testified that she also was involved
in the process of locating Andrew. Watson explained that, in
such a case where the parent’s whereabouts are unknown,
she first checks to see what the initial assessment worker has
completed and then conducts her own investigation, which
includes looking for addresses and telephone numbers, talk-
ing with family members, and internet research. Watson tes-
tified that she knew Andrew was Chance’s legal father from
the marriage certificate of Andrew and Miranda. According
to Watson, she did not send out letters to the possible known
addresses, because Kircher had recently done that, so Watson
iN Re iNTeReST oF CHANCe J. 	649
Cite as 17 Neb. App. 645

double-checked all the information, while searching for any
additional information.
Miranda supplied Watson with a telephone number for
Andrew, and Watson testified that she immediately tried to
contact Andrew several times and then again “every couple of
months” until February 2008. Watson sent Andrew two letters
on February 1, 2008, sending one of the two, again, to the
Richland Drive address in Bowling Green. Watson testified that
on February 14, she received a voice mail from Andrew stating
that he had received her letter and providing a new contact tele-
phone number. Watson called Andrew at the newly provided
number and left him a lengthy message, with court dates and
telephone numbers, but did not actually talk to Andrew until
March 4.
During the conversation on March 4, 2008, Andrew told
Watson that he did not believe Chance was his son because of
how Chance looked at birth and that Andrew had spoken with
Miranda approximately 5 months before. Watson explained
to Andrew that under Nebraska law, because he and Miranda
were married at the time of Chance’s birth, he was consid-
ered Chance’s legal father. Watson testified that Andrew
explained that he had not seen Chance since birth, but had
talked with Miranda “‘all the time’” about Chance and how
he looked. Andrew told Watson, again, that he did not think
Chance was his, because Andrew is black, but would “take
him” if Chance was his child. Watson indicated that she gave
Andrew several referrals for DNA testing and several con-
tact numbers for herself, as well as child support agencies.
Andrew did not ask to have any contact with the child at that
time, but continued to maintain contact with Watson over the
following months.
in late April 2008, genetic testing was completed, indicat-
ing that Andrew was Chance’s father. Watson testified that the
first time she and Andrew discussed visitation with Chance was
near the end of June 2008, when she asked him about visitation.
As previously mentioned, visitation was scheduled between
Chance and Andrew in July. Andrew drove to Nebraska from
Kentucky, but the visitation did not occur. Trial testimony from
Watson, Andrew, and Chance’s second foster mother indicates
650 	17 NeBRASKA APPeLLATe RePoRTS

that a series of miscommunications between the parties resulted
in the visitation’s never taking place.
5. Juvenile proCeedings
on February 14, 2008, the State filed a supplemental petition
alleging that Chance was within the meaning of §§ 43-247(3)(a)
(Cum. Supp. 2006) and 43-292(1), (2), and (9), by virtue of
abandonment by Andrew for reason of no contact or support in
the previous 6 months, and that it was in the best interests of
Chance that Andrew’s parental rights be terminated.
The adjudication hearing on the supplemental petition was
held on August 4, 2008. The State called Chance’s foster par-
ents, the initial assessment worker, and the current caseworker.
The caseworker, Watson, testified that she believed it was in
Chance’s best interests that Andrew’s parental rights be termi-
nated. Watson explained that in making such a determination,
she uses several factors, such as the legal reasons, efforts to
locate and work with the parent, services done voluntarily and
services ordered, length of time in foster care, permanency
options and the care the child is currently receiving, and the
long-term emotional, social, educational, and psychological
needs of the child. Watson testified that in Chance’s case,
Chance is stable and has improved with the current fos-
ter placement.
At the hearing, Andrew testified in his own behalf. Andrew
testified that he still lives in Bowling Green and has been
employed with the “Lincoln Way Agency” for 1 year. Andrew
testified that he was not previously married, but does have
three older children in their twenties. Andrew testified that he
raised those children on his own, after their mother left them
in the care of Andrew. Andrew testified that he was still mar-
ried to Miranda and that after the two separated, he traveled
to California to see Miranda give birth to Chance. Andrew
described the atmosphere in the hospital room as “awkward”
because when the nurse gave him the child, Chance was
“white, had blue eyes, and red hair.” Andrew explained that
when Miranda saw the baby, she responded by saying that
“‘[i]t was a trick’s baby.’” Andrew testified that, thus, since he
is black, he believed Chance was not his child.
iN Re iNTeReST oF CHANCe J. 	651
Cite as 17 Neb. App. 645

Andrew testified that Miranda did not keep in contact with
him after Chance’s birth and Andrew’s return to Bowling
Green. Specifically, Andrew maintained that he had no contact
with Miranda until May 2008, even though there was testi-
mony presented that Andrew had told Watson he had spoken
with Miranda in the months prior to the petition’s being filed.
Andrew testified that even though he was living at one of the
addresses to which the certified letters had originally been
sent in June 2007, he did not receive any such letter. Andrew
further explained that until the February 1, 2008, letter from
Watson, he knew nothing of the situation involving Chance.
Andrew testified that he was never informed that he could send
cards, letters, or gifts to Chance and was never offered any type
of visitation.
on cross-examination, Andrew testified that once he saw
Chance, after birth, he did not believe that Chance was his son
and made no effort to try and determine whether he was not in
fact the father. Andrew testified as follows:
Q. okay. So during that time frame up until you
received — allegedly received the second letter from the
Department, you didn’t make any inquiry during that time
to whether or not Chance was your son?
A. Right.
Q. So while Chance was in foster care and you were in
Bowling Green, you kept on thinking Chance was some-
one else’s child; correct?
A. Yes, i did.
Q. Now, was the only reason why you didn’t think that
Chance was your son was because he was white?
A. Yes, because he was white.
Q. So if Chance was born black you would have made
some effort to try to be his dad at that time; correct?
A. Not without a DNA test i wouldn’t.
Q. So are you saying if the child was born darker at
birth, you would have actually made an effort in regards
to trying to find out for DNA testing, you would have
actually thought of that?
A. Yes, i would have.
652 	17 NeBRASKA APPeLLATe RePoRTS

However, Andrew testified that since discovering that Chance
was his son, in April 2008, he has made continuing efforts to
establish a home for Chance, including requesting that a home
study be completed and keeping in close contact with Watson.
Andrew testified that he would do “whatever it takes” in order
to provide a home and be a parent to Chance.
on August 8, 2008, the juvenile court issued an order
determining that Chance was a child within the meaning of
§§ 43-247(3)(a) (Reissue 2008) and 43-292(1), (2), and (9) and
that it was in the best interests of Chance that Andrew’s paren-
tal rights be terminated. Andrew has timely appealed.
iii. ASSiGNMeNTS oF eRRoR
Andrew has no assignments of error, but argues that the
juvenile court erred in (1) finding that statutory grounds for
termination of his parental rights were proved by clear and con-
vincing evidence, (2) finding that reasonable efforts under Neb.
Rev. Stat. § 43-283.01 (Reissue 2008) were not required, and
(3) finding that termination of Andrew’s parental rights was in
Chance’s best interests.
iV. STANDARD oF ReVieW
[1,2] Juvenile cases are reviewed de novo on the record, and
the appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Tyler F.,
276 Neb. 527, 755 N.W.2d 360 (2008); In re Interest of Jeffrey
K., 273 Neb. 239, 728 N.W.2d 606 (2007). When the evidence
is in conflict, however, an appellate court may consider and
give weight to the fact that the trial court observed the wit-
nesses and accepted one version of the facts over the other. In
re Interest of Tyler F., supra.
V. ANALYSiS
1. grounds for terminAtion of pArentAl rights
[3,4] The right of parents to maintain custody of their child
is a natural right, subject only to the paramount interest which
the public has in the protection of the rights of the child. In re
Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d
442 (2004); In re Interest of Dylan Z., 13 Neb. App. 586, 697
iN Re iNTeReST oF CHANCe J. 	653
Cite as 17 Neb. App. 645

N.W.2d 707 (2005). The fundamental liberty interest of natural
parents in the care, custody, and management of their child
is afforded due process protection, and state intervention to
terminate the parent-child relationship must be accomplished
by fundamentally fair procedures meeting the requisites of the
Due Process Clause. See In re Interest of Mainor T. & Estela
T., supra.
[5] Before parental rights may be terminated, the evidence
must clearly and convincingly establish the existence of one or
more of the statutory grounds permitting termination and that
termination is in the juvenile’s best interests. In re Interest of
Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007).
Andrew argues that the juvenile court erred in finding that
statutory grounds for termination of his parental rights pursuant
to § 43-292(1), (2), and (9) were proved by clear and convinc-
ing evidence.
(a) Abandonment
[6] For purposes of § 43-292(1), abandonment has been
described as 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. In re Interest of Deztiny C., 15
Neb. App. 179, 723 N.W.2d 652 (2006).
[7,8] 	Section 	43-292(1) 	further 	provides 	that 	there 	are
grounds for termination of parental rights when a parent has
“abandoned the juvenile for six months or more immediately
prior to the filing of the petition.” The time period for abandon-
ment in this section is determined by counting back 6 months
from the date the juvenile petition was filed. See In re Interest
of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004). The
supplemental petition in this case was filed on February 14,
2008, which is counted back 6 months to August 14, 2007.
The record clearly shows that Andrew had no contact with
Chance during this 6-month time period, from August 14,
2007, to February 14, 2008. in fact, Andrew’s only contact
with Chance, ever, was immediately following his birth in
April 2006. The State’s witnesses, including Chance’s two fos-
ter mothers and two DHHS workers involved, all corroborated
654 	17 NeBRASKA APPeLLATe RePoRTS

the fact that Andrew had no contact with Chance during this
time, or at any time, prior to or following the requisite 6-month
time period. The State’s witnesses further testified that Andrew
has not provided Chance any financial support, and also has
not provided any cards, gifts, or letters for Chance. Andrew
himself admitted to having no contact with Chance after the
hospital visit following Chance’s birth.
However, Andrew argues that he did not intend to abandon
Chance and had “a just cause or excuse for withholding his
presence,” because he was not aware that he was Chance’s
father. Brief for appellant at 11. Andrew argues that this situa-
tion is akin to that of the father in In re Interest of Dylan Z.,
13 Neb. App. 586, 697 N.W.2d 707 (2005), in which this court
held that the father’s lack of contact with his minor child was
directly attributable to his lack of knowledge that he was the
child’s father. We concluded that the father’s failure to connect
with his child was due to just cause and excuse because DHHS
and the protection safety worker made no attempts to contact
the father during the relevant 6-month time period.
The facts of In re Interest of Dylan Z., supra, indicate
that the parents of Dylan Z. were not married, they were not
together when Dylan was born, the father was not present at
Dylan’s birth, the father was not named on the birth certificate,
and Dylan’s father suspected Dylan’s mother of being involved
with another man around the time of conception. The facts also
indicate that the DHHS protection safety worker was aware of
the name of Dylan’s father for 2 years before the supplemental
petition was filed and made only two attempts to contact the
father, not within the requisite 6-month time period. Dylan’s
father presented evidence that he was unaware that he was
Dylan’s father until he was served with the petition.
While the facts in this case differ somewhat from those in
In re Interest of Dylan Z. because, unlike Dylan’s parents,
Miranda and Andrew were married at the time of Chance’s
birth and remained married during the juvenile proceedings,
the issue remain the same, whether or not Andrew had the
intent to abandon Chance.
Upon our de novo review of the record, we find that
Andrew did not have the intent to abandon his child. Clearly,
iN Re iNTeReST oF CHANCe J. 	655
Cite as 17 Neb. App. 645

Andrew abandoned a child, inasmuch as he was present for
the birth of a child by his wife; however, the circumstances
surrounding the birth indicated to Andrew that he was not
Chance’s father.
The record indicates that Miranda had been using drugs
and prostituting for several months before and after she left
Andrew in Kentucky. Miranda disappeared from Andrew’s life,
and Andrew had no idea where she was or what she was doing
until approximately 9 to 10 months after the two separated,
when Andrew learned that Miranda was giving birth to a child
and subsequently traveled to California to see the birth. Upon
viewing Chance after the birth, Andrew did not believe the
child was his, the idea of which was confirmed when Miranda
indicated that Chance was “‘a trick’s baby.’” Miranda listed no
name for Chance’s father on the birth certificate, and Andrew
returned to Kentucky.
There is nothing in the record to indicate that Andrew had
actual knowledge that Chance was his child until the genetic
testing was completed in April 2008; thus, Andrew could not
have intentionally abandoned his child (Chance) for 6 months or
more immediately prior to the filing of the petition, as required
by § 43-292(1), because he did not know Chance was his child.
Moreover, despite being legally married to Miranda at the time
of Chance’s birth, there were abundant reasons for Andrew to
reasonably believe that he had not fathered the child, including
the child’s physical appearance and the mother’s statement that
the baby was “‘a trick’s baby.’” The record indicates that once
Andrew learned Chance was his child, Andrew made attempts
to secure visitation with Chance and Andrew wanted to be a
part of Chance’s life.
Therefore, because we conclude that the record lacks clear
and convincing evidence to support a finding that Andrew
intentionally abandoned his child (Chance), we find that the
juvenile court erred in finding that this statutory ground was
proved by clear and convincing evidence.
(b) Neglect
[9] Neglect, in the context of § 43-292(2), requires that the
parents “substantially and continuously or repeatedly neglected
656 	17 NeBRASKA APPeLLATe RePoRTS

and refused to give the juvenile . . . necessary parental care
and protection.” We interpret § 43-292(2) to be referring to a
parent’s obligation to care for his or her child.
The record in this case fails to establish by clear and con-
vincing evidence that Andrew substantially and continuously
or repeatedly neglected and refused to give his child (Chance)
the necessary parental care and protection. The record dem-
onstrates that Andrew’s failure to parent Chance was not due
to indifference or intention to abandon or neglect Chance,
but a result of Andrew’s lack of knowledge that Chance was
his child. Further, the record does not support a finding by
clear and convincing evidence that Andrew refused to give
Chance the necessary parental care and protection, because
once Andrew knew Chance was his child, he immediately took
steps to become involved with Chance as his father.
Thus, the juvenile court also erred in determining that this
statutory ground for termination of Andrew’s parental rights
was proved by clear and convincing evidence.
(c) Aggravated Circumstance
[10] Finally, § 43-292(9) provides statutory grounds for ter-
mination of parental rights if the juvenile court finds that the
parent has subjected the child to “aggravated circumstances,
including, but not limited to, abandonment, torture, chronic
abuse, or sexual abuse.” The aggravated circumstance at issue
in this case is abandonment. As noted above, we concluded that
the juvenile court erred in finding that the State proved by clear
and convincing evidence that Andrew had abandoned Chance
in accordance with § 43-292(1). Therefore, it also follows that
the record does not clearly and convincingly demonstrate that
Andrew subjected Chance to the aggravated circumstance of
abandonment in § 43-292(9), and the juvenile court erred in
finding that this statutory ground for termination was proved
by clear and convincing evidence.
2. reAsonAble efforts to preserve And reunify
Andrew next argues that the juvenile court erred in failing to
require reasonable efforts pursuant to § 43-283.01 to preserve
and reunify the family, because the juvenile court erroneously
found that Andrew had abandoned Chance.
iN Re iNTeReST oF CHANCe J. 	657
Cite as 17 Neb. App. 645

[11] 	Section 	43-283.01(4)(a) 	excuses 	reasonable 	efforts
when the parent “has subjected the juvenile to aggravated
circumstances, including, but not limited to, abandonment.”
in accordance with the above findings that the State failed
to prove by clear and convincing evidence any of the alleged
statutory grounds for parental termination, we find the juvenile
court also erred in concluding that reasonable efforts were
not required.
3. best interests of C hild
[12] Finally, Andrew contends that it is not in Chance’s
best interests to terminate Andrew’s parental rights. Andrew
argues that he has been employed for 1 year at the Lincoln
Way Agency, has already raised three children, and has made
repeated trips to omaha to attend hearings and attempt visi-
tation and that there is no evidence, beyond the opinion of
Watson, to suggest that termination of his parental rights is
appropriate. in order to terminate parental rights, the State
must prove by clear and convincing evidence that one of the
statutory grounds enumerated in § 43-292 exists and that ter-
mination is in the child’s best interests. In re Interest of Dylan
Z., 13 Neb. App. 586, 697 N.W.2d 707 (2005).
The only evidence in the record which suggests that termi-
nation of Andrew’s rights would be in Chance’s best interests
is the testimony of Chance’s caseworker, Watson. Watson tes-
tified that it was her opinion, looking at the case as a whole,
including Andrew’s lack of involvement, Chance’s special
needs, and Chance’s current situation, that it was in Chance’s
best interests that Andrew’s parental rights be terminated.
Chance’s second foster mother had worked with Watson and
testified that Chance has several special needs concerning
his developmental delays which require significant time and
appropriate services. While Andrew did testify that until hear-
ing the testimony of Chance’s second foster mother, he did not
know Chance had any special needs, there was no evidence
presented that Andrew was unable or unwilling to provide for
any of Andrew’s special needs.
Watson also testified that her opinion was partly based on
Chance’s current situation, inasmuch as he had been placed
658 	17 NeBRASKA APPeLLATe RePoRTS

with a caring and involved foster family who was willing to
have permanent placement of Chance. The evidence presented
at the trial indicates that Chance’s second foster mother has
provided appropriate care and that the foster home is a suitable
placement for Chance; however, these factors do not support
a finding that termination of Andrew’s parental rights is in
Chance’s best interests. Thus, upon our de novo review of the
record, we find that the record does not support the juvenile
court’s finding that termination of Andrew’s parental rights is
in Chance’s best interests.
Vi. CoNCLUSioN
Upon our de novo review of the record, we conclude the
State failed to present sufficient evidence to support a finding
by clear and convincing evidence that Andrew’s parental rights
should be terminated, that reasonable efforts were not required,
and that termination of Andrew’s parental rights is in Chance’s
best interests. Therefore, we reverse, and remand to the juve-
nile court for further proceedings.
reversed And remAnded for
further proCeedings.
inbody, Chief Judge, dissenting.
i must respectfully dissent from the majority’s opinion
reversing the juvenile court’s order which terminated the paren-
tal rights of Andrew and remanding for further proceedings.
The majority opines that although Andrew abandoned a child
in this case, he did not intend to abandon his child, and that
therefore, his parental rights should not be terminated. The
majority relies on In re Interest of Dylan Z., 13 Neb. App. 586,
697 N.W.2d 707 (2005), in reaching its decision by focusing
on Andrew’s intent to abandon Chance. The majority reasons
that, because Miranda told Andrew that Chance was “‘a trick’s
baby,’” in combination with the physical features of Chance,
Andrew did not intentionally abandon his child, not unlike the
father in In re Interest of Dylan Z.
However, a closer reading of In re Interest of Dylan Z.
shows a different set of facts from those presented in the
present case. in In re Interest of Dylan Z., Dylan’s parents
were not married or in a relationship when Dylan was born
iN Re iNTeReST oF CHANCe J. 	659
Cite as 17 Neb. App. 645

and the alleged father was not present at Dylan’s birth, or
anytime thereafter. Conversely, in the present case, Andrew
and Miranda were, and still are, legally married. The record
contains the marriage certificate for Andrew and Miranda,
who were married in omaha, Nebraska, on February 6, 2002,
and those facts were not disputed. Andrew and Miranda’s mar-
riage creates a rebuttable presumption that a child born of a
marriage is legitimate, unless otherwise decreed by the court.
See Neb. Rev. Stat. § 42-377 (Reissue 2008). The presumed
legitimacy of a child born in wedlock may not be rebutted by
the testimony or declaration of a parent. Ford v. Ford, 191 Neb.
548, 216 N.W.2d 176 (1974); Cavanaugh v. deBaudiniere,
1 Neb. App. 204, 493 N.W.2d 197 (1992). Thus, Miranda’s
statement to Andrew that Chance must be “‘a trick’s baby’”
(which statement is relied upon by the majority) is not enough
to clearly and convincingly rebut the presumption that Chance
was Andrew’s child.
Also distinguishable from In re Interest of Dylan Z. is the
testimony by several witnesses, including Andrew, that he had
been informed of Chance’s birth and subsequently traveled
to California to witness the birth. However, Andrew felt that
because he is a black man and Chance was “born white, with
red hair and blue eyes . . . , there did not appear to be much
further need for discussion” as to Chance and Andrew’s rela-
tionship. Brief for appellant at 13. Andrew admitted that after
Chance was born, Andrew left the hospital and had no further
contact with Miranda regarding Chance until Miranda’s termi-
nation of parental rights hearing in May 2008.
There is nothing in the record to indicate that Andrew did
not have the means or opportunity, while at the hospital or
anytime thereafter, to confirm his suspicions that Chance was
not his child. instead, Andrew made a conscious decision to
walk out of the hospital room and out of Chance’s life. it
was not until nearly 3 years later, after DNA testing had been
completed, and almost 4 months after the State had filed the
petition to terminate his parental rights, that Andrew took any
responsibility for Chance. These circumstances clearly amount
to abandonment as provided by Neb. Rev. Stat. § 43-292(1)
(Reissue 	2008). 	Andrew 	has 	intentionally 	withheld 	from
660 	17 NeBRASKA APPeLLATe RePoRTS

Chance, without just cause or excuse, his presence, care, love,
protection, maintenance, and opportunity for the display of
parental affection. See In re Interest of Deztiny C., 15 Neb.
App. 179, 723 N.W.2d 652 (2006). Moreover, the record
clearly shows that Andrew had no contact from August 14,
2007, through February 14, 2008, which satisfies the requisite
6-month time period for abandonment under § 43-292(1). See
In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d
378 (2004).
i also disagree with the majority’s conclusion that termina-
tion of Andrew’s parental rights is not in Chance’s best inter-
ests. in addition to the abandonment issues discussed above,
Chance’s second foster mother testified that Chance has several
special needs, including developmental delays, and that she has
sought to provide Chance the appropriate services for those
special needs. Andrew testified that he was unaware Chance
had any special needs until hearing the second foster moth-
er’s testimony, but thought he could get services for Chance,
because “in every state of the United States there is [sic] all
types of services for kids with needs.” The DHHS caseworker
also testified that it was her opinion—looking at the case as a
whole, including Andrew’s lack of involvement, Chance’s spe-
cial needs, and the stability of Chance’s current situation—that
it was in Chance’s best interests that Andrew’s parental rights
be terminated.
in my opinion, the outcome reached by the majority leads us
down a slippery slope. A married man would be able to aban-
don a child of the marriage based upon the physical features
of a child that are substantially different from his own physi-
cal features.
Therefore, under a de novo review of the record, i would
find that the evidence in the record clearly and convincingly
establishes the existence of statutory grounds permitting ter-
mination of Andrew’s parental rights, as Chance’s presumptive
father under § 42-377, and that termination of those rights is in
Chance’s best interests. See In re Interest of Destiny A. et al.,
274 Neb. 713, 742 N.W.2d 758 (2007). Furthermore, because
i would find that the juvenile court did not err in finding that
Andrew had abandoned Chance pursuant to § 43-292(1), i
iN Re iNTeReST oF CHANCe J. 	661
Cite as 17 Neb. App. 645

would conclude that the State was not required to make reason-
able efforts to reunify the family pursuant to Neb. Rev. Stat.
§ 43-283.01 (Reissue 2008).
662 	17 NeBRASKA APPeLLATe RePoRTS