In re Interest of Elizabeth S.

and remand the cause for a finding whether Norman is subject
to SORA consistent with this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
heAvicAn, C.J., participating on briefs.
Wright, J., not participating in the decision.
iN Re iNteReSt Of elizAbeth S. 	1015
Cite as 282 Neb. 1015
in re interest of elizAbeth s., A child
under 18 yeArs of Age .
stAte of nebrAskA And depArtment of heAlth
And humAn services , Appellees , v.
victoriA g., AppellAnt.
809 N.W.2d 495
filed January 6, 2012. 	No. S-11-153.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. ____: ____. An appellate court reviews questions of law independently of the
juvenile court’s conclusions.
3. Minors: Juvenile Courts. the foremost purpose and objective of the Nebraska
Juvenile Code is to promote and protect the juvenile’s best interests.
4. Juvenile Courts: Parental Rights: Adoption. Where a juvenile has been adju-
dicated pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) and a perma-
nency objective of adoption has been established, a juvenile court has authority
under the juvenile code to order the Nebraska Department of health and human
Services to accept a tendered relinquishment of parental rights.
5. Juvenile Courts: Parental Rights: Evidence. A parent’s prior relinquishment of
parental rights may be considered as evidence supporting adjudication or termina-
tion of parental rights in a future proceeding involving another child.
6. Juvenile Courts: Parental Rights. A juvenile court should exercise its author-
ity to order the Nebraska Department of health and human Services to accept a
valid relinquishment with respect to an adjudicated child when it would be in the
best interests of that child to do so.
Appeal 	from 	the 	Separate 	Juvenile 	Court 	of 	lancaster
County: lindA s. porter, Judge. Affirmed.
Sanford J. Pollack, of Pollack & ball, l.l.C., for appellant.
Shellie D. Sabata, Deputy lancaster County Attorney, for
appellee State of Nebraska.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

James l. hatheway for appellee Department of health and
human Services.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck , and miller-lermAn, JJ.
gerrArd, J.
Victoria G., the biological mother of elizabeth S., appeals
from the judgment of the separate juvenile court of lancaster
County overruling Victoria’s motion to require the Department
of health and human Services (Department) to accept her
relinquishment of parental rights and instead terminating her
parental rights. We find that the court should have ordered the
Department to accept Victoria’s relinquishment of her parental
rights, but we conclude that the issue is moot because we find
clear and convincing evidence supporting the court’s termina-
tion of Victoria’s parental rights. We affirm.
i. bACKGROUND
elizabeth 	was 	born 	2 	months 	prematurely 	in 	lincoln,
Nebraska, in May 2009. On June 2, Crystal lentell, a child and
family services specialist with the Department, was assigned
to complete a safety assessment, because Victoria had not been
to see elizabeth in the hospital since May 26. When lentell
met with Victoria on June 9, Victoria said she was living under
a bridge on West O Street. She said she had not been to see
elizabeth because she was “stranded” at a nearby recreation
area and did not have transportation back to lincoln. hospital
staff reported that Victoria was not bonding with or caring for
elizabeth. lentell concluded that Victoria lacked parenting
knowledge and the skills and motivation necessary to ensure
elizabeth’s safety. elizabeth was released from the hospital
when she was 8 weeks old and immediately placed in fos-
ter care.
On July 7, 2009, the State filed a petition alleging that
elizabeth was a child as defined by Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008). the petition alleged that Victoria had not dem-
onstrated an ability to provide for elizabeth’s basic needs or
a safe and stable home environment. Victoria did not contest
the allegations. On September 8, the court entered an order
1016 	282 NebRASKA RePORtS

adjudicating elizabeth as a child as defined by § 43-247(3)(a).
the court ordered that elizabeth remain in the temporary
legal and physical custody of the Department for placement,
treatment, and care; that Victoria have reasonable rights of
supervised visitation; and that Victoria cooperate with a full
psychological evaluation.
Although Victoria was granted visitation with elizabeth,
there were concerns about her ability to parent because she did
not understand the basics of childcare, such as how to check
the temperature of a bottle. Victoria also seemed to believe
that elizabeth should be walking and talking at 4 months old.
Victoria was inconsistent in her visitations, despite being pro-
vided with transportation. She would fail to come for visits, fall
asleep during them, arrive late, or want to leave early. Victoria’s
last visit with elizabeth occurred on September 4, 2009; she
stopped visiting after that. At some time around then, Victoria
tried to commit suicide by drinking a bottle of peroxide.
After a dispositional hearing on October 29, 2009, the court
found that reasonable efforts had been made to return legal
custody to Victoria through visitation time, referrals for a
pretreatment assessment, psychological and psychiatric evalu-
ations, parenting education, and family support. however,
the court determined that returning legal custody to Victoria
would be contrary to elizabeth’s welfare due to Victoria’s
lack of contact and her history of mental health problems
and instability. the court ordered elizabeth’s legal custody to
remain with the Department and continued her placement in
foster care. it directed Victoria to maintain a safe and stable
living environment for herself and elizabeth; to obtain or
maintain employment; to have a minimum of two supervised
visits per week; to complete a psychological evaluation; and
to participate in family support services, a parenting/bonding
assessment, a psychiatric evaluation, parenting education, and
individual therapy.
following review hearings on february 1, June 7, and
July 12, 2010, the court continued to find that returning legal
custody to Victoria would be contrary to elizabeth’s welfare.
Victoria did not appear at any of those hearings. the court
continued legal custody with the Department and placement
iN Re iNteReSt Of elizAbeth S. 	1017
Cite as 282 Neb. 1015

in the same foster home. the same restrictions were placed on
Victoria as had been outlined in the earlier order. the court
found that services had been provided in compliance with the
case plan and that no progress had been made to alleviate the
causes of the out-of-home placement. At some point during the
proceedings, Victoria had moved to illinois, but a Department
caseworker and a service coordinator each tried to help Victoria
access services in illinois, and there is no evidence that Victoria
complied with the court’s orders. Nor did Victoria provide any
financial support, food, clothing, or gifts for elizabeth.
On July 30, 2010, Victoria filed a motion to require the
Department to accept her relinquishment of elizabeth. Victoria
said she wished to voluntarily relinquish her parental rights,
but the Department had advised her that it was not willing to
accept a voluntary relinquishment. On September 1, the court
conducted a review hearing and considered Victoria’s motion.
Victoria did not appear at that hearing either. Robin Gibreal,
the Department caseworker, testified that the agency was not
willing to accept Victoria’s relinquishment based on concerns
about her ability to parent. Gibreal had learned that while liv-
ing in illinois, Victoria had had another child, who was going
to live with Victoria’s sister in Nebraska. if Victoria continued
to have children, Gibreal was concerned about their well-being.
Gibreal said it was in elizabeth’s best interests for termination
to occur.
in an order entered on September 9, 2010, the court approved
a permanency plan of adoption by the current foster par-
ents and continued the hearing on Victoria’s motion seeking
relinquishment. When the hearing resumed on September 30,
Gibreal stated that the Department did not want to accept the
relinquishment, because Victoria had not completed a mental
health or psychological evaluation and the agency was con-
cerned about whether she had the mental state to agree to
relinquishment. Gibreal also said Victoria had never submit-
ted paperwork to the Department to request its approval of
relinquishment.
the court overruled Victoria’s motion because she was not
present at the hearing, the relinquishment had not been ten-
dered to the Department, and it could not be determined
1018 	282 NebRASKA RePORtS

whether Victoria understood the meaning of relinquishment
and whether she was willing to enter into it. On October 6,
2010, the court entered an order overruling Victoria’s motion
and scheduling a review hearing for December 6.
On October 12, 2010, the State filed a motion to termi-
nate Victoria’s parental rights to elizabeth. On December 6,
Victoria filed a second motion asking the court to require the
Department to accept her relinquishment. At a hearing on
December 8, Victoria testified that she was currently living
in illinois. She said that she wanted to relinquish her parental
rights to elizabeth. Victoria stated that she was under the care
of a psychologist and was taking medication for clinical depres-
sion, “bipolar type 2.” Victoria admitted that she had given
birth to another child who had been voluntarily placed with
Victoria’s sister through a guardianship entered in the county
court for York County, Nebraska. Victoria said she understood
that if she relinquished her parental rights to the Department,
she could not change her mind or undo the adoption. She also
said she was willing to participate in a mental health assess-
ment to determine her competency.
elizabeth’s foster mother testified that she and her husband
were willing to adopt elizabeth as quickly as possible. but
Gibreal testified that the Department was not willing to accept
the relinquishment because it believed Victoria had abandoned
elizabeth. Victoria said she planned to move back to Nebraska,
and the Department did not have a guarantee that she would
not take back custody of her subsequently born child. And the
Department continued to have concerns about Victoria’s ability
to parent. the court took Victoria’s motion under advisement.
Victoria was arrested on outstanding warrants after the hearing
and spent 8 days in jail.
On January 4, 2011, Victoria filed a motion asking the court
to rule on her relinquishment motion. A formal hearing on the
motion to terminate parental rights was held on January 11.
finally, on february 2, the court entered an order terminat-
ing Victoria’s parental rights to elizabeth. the court noted
that Victoria’s contact with elizabeth had been inconsistent
even before Victoria left Nebraska. Victoria had shown mini-
mal interest in elizabeth and had provided virtually no care,
iN Re iNteReSt Of elizAbeth S. 	1019
Cite as 282 Neb. 1015

support, or protection, whether of a physical, financial, or emo-
tional nature. Nor did it appear that she was capable of doing
so: evidence at the termination hearing established that she
was living at a city mission. Victoria presented no evidence of
compliance with any aspect of her case plan. the court found
that the Department had proved the allegations of the termina-
tion motion by clear and convincing evidence and that it was
in elizabeth’s best interests that Victoria’s parental rights be
terminated.
On the same date, the court also entered an order overrul-
ing Victoria’s motion to require the Department to accept her
relinquishment. because the court had terminated Victoria’s
parental rights, the court found the relinquishment motion
was moot.
ii. ASSiGNMeNtS Of eRROR
Victoria assigns, as consolidated and restated, that the juve-
nile court erred in (1) failing to require the Department to
accept her relinquishment, (2) finding that Victoria had sub-
stantially and repeatedly or continuously neglected elizabeth,
(3) finding that reasonable efforts had failed to correct the
conditions leading to the adjudication, and (4) finding that the
termination of Victoria’s parental rights was in elizabeth’s best
interests.
iii. StANDARD Of ReVieW
[1,2] We review juvenile cases de novo on the record and
reach our conclusions independently of the juvenile court’s
findings.1 And we also review questions of law independently
of the juvenile court’s conclusions.2
iV. ANAlYSiS
1. victoriA’s relinquishment
of pArentAl rights
the parties to this appeal agree that Victoria has forfeited
her parental rights to elizabeth and that elizabeth should be
1 In re Interest of Lakota Z. & Jacob H., ante p. 584, 804 N.W.2d 174
(2011).
2 See In re Interest of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008).
1020 	282 NebRASKA RePORtS

adopted by her foster parents. they disagree about the means
by which Victoria should have been deprived of her parental
rights. And the Department argues that the issue is moot. With
that much, we agree.3 but the record in this case reflects some
disagreement among the parties, both on appeal and in the
lower court, about the appropriate analysis to be performed
when a parent tenders relinquishment of his or her parental
rights. And that issue, while capable of repetition, will evade
review absent the unlikely circumstances of both the refusal to
accept relinquishment and the overruling of a motion to termi-
nate parental rights. it is, therefore, in the public interest for us
to address Victoria’s argument.4
the basis for the parties’ dispute is the collateral effect that
involuntary termination of parental rights can have on that
parent’s rights to other children. One of the statutory condi-
tions supporting termination of parental rights is that the
parents “have substantially and continuously or repeatedly
neglected and refused to give the juvenile or a sibling of the
juvenile necessary parental care and protection.”5 And reason-
able efforts to reunify a family prior to termination are not
required if “[t]he parental rights of the parent to a sibling of the
juvenile have been terminated involuntarily.”6 in sum, once the
State has successfully terminated a parent’s rights to one child,
it becomes easier for the State to terminate the same parent’s
rights to other children. that collateral advantage is what the
Department sought to obtain here and what Victoria apparently
sought to avoid.
[3] but while the Department’s decision makes sense from
a strategic point of view, the foremost purpose and objective
of the Nebraska Juvenile Code7 is to promote and protect the
3 See, generally, In re Interest of Thomas M., ante p. 316, 803 N.W.2d 46
(2011).
4 See id.
5 Neb. Rev. Stat. § 43-292(2) (Cum. Supp. 2010) (emphasis supplied).
6 Neb. Rev. Stat. § 43-283.01(4)(c) (Cum. Supp. 2010).
7 See Neb. Rev. Stat. §§ 43-246 through 43-2,129 (Reissue 2008 & Cum.
Supp. 2010).
iN Re iNteReSt Of elizAbeth S. 	1021
Cite as 282 Neb. 1015

juvenile’s best interests.8 And we relied upon that principle
in In re Interest of Gabriela H.,9 in which we explained the
juvenile court’s authority to compel the Department to accept
a parent’s relinquishment of parental rights. in that case,
the Department refused to accept a relinquishment because,
among other things, the parent was paying a “‘substantial
amount’” of child support.10 the juvenile court, however,
ordered the Department to accept the relinquishment. We
affirmed that order.11
[4] We reasoned that although the juvenile code gives the
Department a “certain degree of discretion” with respect to
children in its custody, “that discretion is subject to the supe-
rior right of the juvenile court to determine what is in the
child’s best interests.”12 Juvenile courts, we noted, are accorded
broad discretion in their determination of the placement of
adjudicated children and to serve the best interests of the chil-
dren involved.13 because the juvenile in that case had been
adjudicated under § 43-247(3)(a), the court was guided by
the juvenile code.14 And, we noted, it would have been incon-
sistent with other statutory provisions to conclude that the
Department “is required to recommend termination of paren-
tal rights in the case of an abandoned child but, at the same
time, has the authority to prevent such termination by refusing
to accept a tendered relinquishment of parental rights.”15 So,
we held that where a juvenile has been adjudicated pursuant
to § 43-247(3)(a) and a permanency objective of adoption
has been established, a juvenile court has authority under the
8 See In re Interest of D.D.P., 235 Neb. 864, 458 N.W.2d 193 (1990).
9 In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010).
10 Id. at 286, 785 N.W.2d at 845.
11 See id.
12 Id. at 288, 785 N.W.2d at 847.
13 Id.
14 See id.
15 Id. at 290, 785 N.W.2d at 848.
1022 	282 NebRASKA RePORtS

juvenile code to order the Department to accept a tendered
relinquishment of parental rights.16
the guiding principle that is apparent from In re Interest of
Gabriela H. is that the court’s authority to order the Department
to accept relinquishment is based in, and guided by, the court’s
responsibility to act in the best interests of the child. And that
means that the court’s responsibility is to the juvenile who
has been adjudicated in that case—not some other child over
whom the court has no established jurisdiction and whose cir-
cumstances are unknown.
[5] We reasoned in In re Interest of Gabriela H. that a
parent’s payment of child support could not “justify the legal
perpetuation of a parental relationship which no longer exists
in fact, thereby permitting an abandoned child to linger indefi-
nitely in foster care.”17 the same is true when a child is sus-
pended in foster care for the sake of simplifying the State’s
burden of proof in some other proceeding, for some other
child. it was not in elizabeth’s best interests, in this case, to
delay permanency for her solely for the sake of its collateral
effect on another proceeding. We also note that while a relin-
quishment of parental rights may not have the same automatic
collateral effect as involuntary termination, a prior relinquish-
ment may nonetheless be considered as evidence supporting
adjudication or termination in a future proceeding involving
another child.18
We recognize that in this case, at least initially, the Department
also expressed concerns about Victoria’s capacity to consent to
relinquishment. that, of course, is a different matter, and it is
well within the discretion of the Department and the juvenile
court to inquire into the capacity of a parent to relinquish
his or her parental rights. but those concerns were evidently
addressed here when Victoria appeared in court and testified
16 In re Interest of Gabriela H., supra note 9.
17 Id. at 291, 785 N.W.2d at 848.
18 See, In re Interest of Sir Messiah T., 279 Neb. 900, 782 N.W.2d 320
(2010); In re Interest of Andrew S., 14 Neb. App. 739, 714 N.W.2d 762
(2006).
iN Re iNteReSt Of elizAbeth S. 	1023
Cite as 282 Neb. 1015

to her mental state and her understanding of the consequences
of relinquishment. And, at that point, the juvenile court could
have (and should have) avoided weeks of further delay and the
burden of a termination hearing by directing the Department to
accept Victoria’s relinquishment.
[6] We cannot see—and the Department does not explain—
how it was in elizabeth’s best interests to do otherwise. it is,
in fact, difficult to imagine circumstances in which the best
interests of a child with a permanency objective of adoption
would not be best served by accepting a valid relinquishment
of parental rights. So, to be clear: We hold that a juvenile court
should exercise its authority to order the Department to accept
a valid relinquishment with respect to an adjudicated child,
pursuant to In re Interest of Gabriela H., when it would be in
the best interests of that child to do so.
that having been said, we agree with the Department that
in this case, the issue of relinquishment is moot. As we will
explain shortly, we find no merit to Victoria’s argument that
the juvenile court erred in finding sufficient evidence to sup-
port termination of her parental rights. the court’s failure
to order the Department to accept Victoria’s relinquishment
does not affect the merits of the court’s decision to terminate
her parental rights, and Victoria cannot relinquish what she
no longer has. the prejudice resulting from the court’s deci-
sion—the delay and burden of the termination hearing—cannot
be remedied after the fact.19 So, while we agree with Victoria
that the court should have ordered the Department to accept her
relinquishment, we find no basis in that argument for reversing
any aspect of the court’s judgment.
2. terminAtion of pArentAl rights
Victoria also argues that the court erred in terminating her
parental rights. the bases for termination of parental rights are
codified in § 43-292, which 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
19 See In re 2007 Appropriations of Niobrara River Waters, 278 Neb. 137,
768 N.W.2d 420 (2009).
1024 	282 NebRASKA RePORtS

is in the best interests of the child.20 Such findings must be
proved by clear and convincing evidence.21 Victoria questions
the court’s conclusions with respect to § 43-292(2) and (6), and
its ultimate conclusion that termination was in elizabeth’s best
interests. We find no merit to any of Victoria’s arguments.
(a) § 43-292(2)
first, Victoria argues that the court erred in finding that she
had “substantially and continuously or repeatedly neglected
and refused to give the juvenile . . . necessary parental care
and protection.”22 this argument is directed at the court’s find-
ing that termination was appropriate under § 43-292(2). We
note, however, that this was only one of the statutory grounds
for termination alleged by the State and found by the juvenile
court to have been proved by clear and convincing evidence.
Most pertinently, it is undisputed that at the time of the termi-
nation hearing, elizabeth had been in an out-of-home place-
ment for 15 or more of the most recent 22 months.23 that fact
alone would provide a statutory basis for termination,24 if clear
and convincing evidence also showed that termination was in
elizabeth’s best interests.
but in any event, the record also supports the court’s deter-
mination that Victoria substantially and continuously or repeat-
edly neglected and refused to give elizabeth necessary parental
care and protection. the record, in fact, does not show that
Victoria ever provided elizabeth with any parental care or
protection. Victoria’s argument is simply that she never had
the opportunity to parent her child because she moved out
of state. her voluntary decision to move, however, does not
weigh in her favor. “‘A parent may as surely neglect a child of
whom [he or] she does not have possession by failing to put
[himself or] herself in a position to acquire possession as by
20 See In re Interest of Sir Messiah T., supra note 18.
21 § 43-279.01(3).
22 See § 43-292(2).
23 See § 43-292(7).
24 See In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d
804 (2000).
iN Re iNteReSt Of elizAbeth S. 	1025
Cite as 282 Neb. 1015

not properly caring for a child of whom [he or] she does have
possession.’”25
(b) § 43-292(6)
Similarly, we find no merit to Victoria’s second argument
that the court erred in finding that reasonable efforts had been
made to correct the conditions leading to the adjudication.
Victoria argues that once she moved to illinois, the Department
stopped supporting her and did not arrange or pay for any of
the court-ordered services in illinois. it was, again, Victoria’s
choice to move away from where the Department could read-
ily provide her with services—most pertinently, proximity to
elizabeth, which would seem to be a necessary aspect of any
reasonable efforts at reunification.
And even then, Victoria’s argument is unsupported by the
record. Victoria did not take significant advantage of her
opportunities when she lived in Nebraska and maintained
only sporadic communication with the Department; commu-
nication became even more difficult after Victoria moved to
illinois. Nonetheless, the Department attempted to locate serv-
ice providers for Victoria in illinois that would accept the
illinois Medicaid payments for which Victoria was eligible
after she moved. And a provider was located for Victoria that
she apparently utilized to some degree, but no evidence was
presented at the termination hearing about the extent to which
Victoria took advantage of those services. in short, the record
clearly establishes that even after Victoria moved to illinois,
the Department made reasonable efforts to preserve and reunify
Victoria and elizabeth. those efforts failed because of Victoria,
not the Department.
(c) best interests
finally, Victoria argues that the court erred in finding that
termination was in elizabeth’s best interests. Victoria’s argu-
ment in this regard is limited to her observation that no witness
at the termination hearing literally opined that termination was
in elizabeth’s best interests. but such “magic words” are not
25 In re Interest of Kalie W., 258 Neb. 46, 50, 601 N.W.2d 753, 756 (1999).
1026 	282 NebRASKA RePORtS

necessary for the record to establish, by clear and convincing
evidence, that termination is in a child’s best interests. in this
case, the record establishes both Victoria’s failure as a parent,
along with the foster parents’ willingness to provide elizabeth
with stability and permanency.
in fact, in arguing for relinquishment, Victoria seems to
agree that adoption by the foster parents is in elizabeth’s best
interests. And while Gibreal did not specifically opine that
termination was in elizabeth’s best interests, she did opine
that elizabeth’s needs were being met by her foster parents,
that placement with the foster parents was in elizabeth’s best
interests, that elizabeth needed permanency as soon as possi-
ble, and that reunification with Victoria was not a realistic goal.
in short, the record contains clear and convincing evidence
that terminating Victoria’s parental rights was in elizabeth’s
best interests.
V. CONClUSiON
While we agree with Victoria that the juvenile court should
have ordered the Department to accept relinquishment of her
parental rights, we also agree with the Department that the
relinquishment is moot. And we find no merit to Victoria’s
claim that the court erred in terminating her parental rights.
the juvenile court’s judgment is affirmed.
A ffirmed.
Wright, J., not participating in the decision.
GiNAPP v. CitY Of belleVUe 	1027
Cite as 282 Neb. 1027
JAn ginApp, Appellee , v. city of bellevue ,
nebrAskA, AppellAnt, And A legent heAlth
midlAnds hospitAl , Appellee .
809 N.W.2d 487
filed January 6, 2012. 	No. S-11-193.
1. Political Subdivisions Tort Claims Act: Appeal and Error. in actions brought
pursuant to the Political Subdivisions tort Claims Act, the factual findings of the
trial court will not be disturbed on appeal unless they are clearly wrong. When
determining the sufficiency of the evidence to sustain the trial court’s judgment,
it must be considered in the light most favorable to the successful party; every