In re Interest of Kenna S.

I n re I nterest of K enna s., a chIld under 18 years of age .
state of nebrasKa , appellant, v.
davId s., appellee .
766 N.W.2d 424
Filed April 28, 2009. 	No. A-08-793.
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 give weight to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other.
3. Juvenile Courts: Parental Rights: Proof. For a juvenile court to terminate
parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2008), it must find that
one or more of the statutory grounds listed in this section have been satisfied and
that such termination is in the child’s best interests. The State must prove these
facts by clear and convincing evidence.
4. Parental Rights. In a case of termination of parental rights based on Neb. Rev.
Stat. § 43-292(7) (Reissue 2008), the protection afforded the rights of the parent
comes in the best interests step of the analysis.
5. ____. 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.
6. ____. Children cannot, and should not, be suspended in foster care, nor be made
to await uncertain parental maturity.
7. Parental Rights: Self-Incrimination. Courts may not terminate parental rights
on the sole basis that a parent refuses to waive his or her right against self-
incrimination.
8. Parental Rights. Termination of parental rights may be based on a parent’s fail-
ure to undergo meaningful therapy.
9. ____. Where the duration of a child’s out-of-home placement warrants termi-
nation of parental rights under Neb. Rev. Stat. § 43-292(7) (Reissue 2008), a
parent’s failure to substantially comply with court-ordered sex offender treatment
weighs in favor of a finding that such termination is in the child’s best interests.
Appeal from the Separate Juvenile Court of Sarpy County:
lawrence d. gendler, Judge. Reversed and remanded with
directions.
Sandra K. Markley, Deputy Sarpy County Attorney, for
appellant.
Ann W. Davis, P.C., for appellee.
I rwIn, carlson, and cassel, Judges.
544 	17 NebRASKA APPellATe RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

per curIam.
I. INTRoDUCTIoN
The State of Nebraska appeals from an order of the juve-
nile court denying the State’s motion to terminate the parental
rights of David S., the natural father of Kenna S. The State
alleges that the juvenile court erred in failing to find that
the statutory grounds for termination under Neb. Rev. Stat.
§ 43-292(6) and (7) (Reissue 2008) were proven and in fail-
ing to find that such termination was in the best interests of
Kenna. Upon our de novo review of the record, we find that
the State proved by clear and convincing evidence that at
the time of the termination hearing, Kenna had been in an
out-of-home placement for more than 15 months of the most
recent 22 months pursuant to § 43-292(7), and that terminat-
ing David’s parental rights is in the best interests of Kenna.
Accordingly, we reverse the order of the juvenile court and
remand the matter with directions.
II. bACKGRoUND
These proceedings involve Kenna, David’s daughter, who
was born on July 26, 1999. The juvenile court terminated
Kenna’s mother’s parental rights as to Kenna, and such termi-
nation is not a part of this appeal.
David’s and Kenna’s involvement with the juvenile court
began in January 2006 as a result of allegations that David had
sexually assaulted his 11-year-old stepdaughter, Kenna’s half
sister, and had viewed child pornography. Kenna was removed
from David’s care on January 5 and placed in the custody
of the Department of Health and Human Services (DHHS).
Ultimately, Kenna was adjudicated as a child within the mean-
ing of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2004).
1. procedure at termInatIon hearIng
We begin our review of the background of this case with a
discussion of the procedural abnormalities which took place
at the parental rights termination hearing in November 2007.
While we normally begin our analysis with a more chronologi-
cal review of the substance of the case, we briefly diverge from
this typical format in order to provide a clear context for our
factual analysis.
IN Re INTeReST oF KeNNA S. 	545
Cite as 17 Neb. App. 544

The termination hearing began on November 16, 2007.
Although both the State and David rested at the close of the
hearing on November 16, the juvenile court continued the
matter and heard additional evidence in March, June, and July
2008. We briefly recount the specific circumstances of each
hearing; however, we note that, as we will discuss more thor-
oughly below, we do not consider any evidence presented after
the hearing on November 16, 2007, in our analysis of whether
David’s parental rights should be terminated.
The initial hearing on the State’s motion for termination of
parental rights was held on November 16, 2007. At the hear-
ing, the State called numerous witnesses to testify concerning
David’s compliance with the court-ordered rehabilitation plan
and Kenna’s best interests. At the conclusion of its evidence,
the State rested. Subsequently, David testified in his own
behalf. At the conclusion of David’s testimony, he rested.
The State then offered rebuttal evidence, and both the State
and David provided a closing argument to the court. At the
conclusion of the arguments, the juvenile court stated that it
would provide the State “30 days to submit cases or a brief”
and would provide David 30 days to respond to the State’s
brief. The court indicated that it would revisit the case in
“less than 90” days. The court also informed David: “So, in
the interim, I’m going to direct [that DHHS] arrange services
for you that are consistent with what are contained in [a thera-
pist’s] evaluation and that you participate in some sort of sex
offender treatment.”
on March 19, 2008, the court held a further hearing to
address the State’s motion to terminate David’s parental rights.
The evidence presented at this hearing generally indicated that
David was attending therapy with Dr. Stephen Skulsky, but that
he had not yet submitted to a polygraph examination despite
his adamant assertions that he had not sexually assaulted
his stepdaughter. Additionally, the evidence indicated that Dr.
Skulsky could not conduct therapy “properly” without the
results of a polygraph.
based on the evidence presented at this hearing, the juvenile
court found, “Dr. Skulsky’s testimony suggests that a little
more time, in fact, is actually reasonable and necessary and I’m
546 	17 NebRASKA APPellATe RePoRTS

not going to dispute that.” The court ordered David to submit
to a polygraph examination and told him:
[T]he issue for me is whether or not you’re making an
earnest effort at correcting what brought this case here,
and what I heard today is no from Dr. Skulsky, [you are]
not, but over the next short term [you] might be capable
of doing it. So that’s really the issue for me. You don’t
have a lot of time.
The court continued the matter and took the issue of termina-
tion under advisement.
on June 25, 2008, a third hearing was held regarding the
State’s motion to terminate David’s parental rights. At this
hearing, the parties informed the court that David had taken a
polygraph examination and that the results of the test revealed
that David was deceptive when he stated that he had not touched
the vaginal area of his stepdaughter and when he stated that he
had not viewed pornographic images of children.
Dr. Skulsky had stated in a treatment summary that he was
not able to tell the court that David was ready to see Kenna. At
the hearing, Dr. Skulsky also stated that he would like the court
to give David additional time to pursue his therapeutic goals
and to work on acquiring a relationship with Kenna.
The juvenile court again took the issue of termination under
advisement and continued the hearing. The court also told
David:
I need you to engage with Dr. Skulsky totally with what
brought you here and how this can be corrected. Now,
he’s just told me that he would like two months to work
with you. I can probably do that, but I don’t want to do
that if I think there’s no chance or no hope that the cir-
cumstances will change.
on July 16, 2008, another hearing was held on the State’s
motion to terminate David’s parental rights. At this hearing,
the court dismissed the State’s motion to terminate David’s
parental rights.
2. substantIve evIdence
We continue our review of the record with a more chrono-
logical and detailed discussion of the evidence presented at the
IN Re INTeReST oF KeNNA S. 	547
Cite as 17 Neb. App. 544

November 2007 termination hearing, which evidence we con-
sider in our analysis of whether David’s parental rights should
be terminated.
As we noted above, Kenna was removed from David’s
care on January 5, 2006, shortly before the State filed a peti-
tion alleging that Kenna was a child within the meaning of
§ 43-247(3)(a) through the faults or habits of David. The peti-
tion alleged, among other things, that David had been arrested
and charged with first degree sexual assault of his 11-year-old
stepdaughter, Kenna’s half sister, and with 11 counts of “child
pornography.” Kenna was placed in foster care by DHHS and
has remained in foster care since that time. David was ordered
to have no contact with Kenna. He denied the allegations in
the petition.
From January to october 2006, numerous hearings were held
on the matter, but David’s adjudication hearing was delayed as
the parties gathered evidence and resolved unrelated issues.
During these 9 months, the juvenile court continued placement
of Kenna with DHHS and ordered David to have no contact
with her.
In November 2006, an adjudication hearing was held. After
the presentation of evidence, the juvenile court found the alle-
gation that David had been arrested and charged with sexual
assault and child pornography to be true by a preponderance
of the evidence. The court found Kenna to be a child within
the meaning of § 43-247(3)(a). The court ordered David to
(1) complete a psychological evaluation; (2) cooperate with
DHHS; (3) have no contact with Kenna; and (4) maintain
a suitable residence for himself, seek and maintain gain-
ful employment, and maintain reasonable contact with his
case manager.
In January 2007, a disposition hearing was held. The juve-
nile court found that reasonable efforts had been made to elimi-
nate the need for the removal of Kenna from her home, but that
returning Kenna to David would be contrary to her best inter-
ests. The court continued placement of Kenna with DHHS. The
court also ordered David to complete additional requirements,
including (1) participating in sex-offender-specific treatment or
therapy and (2) completing a parenting program.
548 	17 NebRASKA APPellATe RePoRTS

In February 2007, David entered into a plea agreement with
the State regarding the pending sexual assault and child por-
nography charges. The exact terms of this plea agreement are
not discussed in our record. However, the record does indicate
that as a result of this plea agreement, David was incarcerated
from February to June.
After David was released from jail in June 2007, another
disposition hearing was held. At this hearing, the juvenile court
again found that reasonable efforts had been made to elimi-
nate the need for the removal of Kenna from her home, but
that returning Kenna to David would be contrary to her best
interests. The court continued placement of Kenna with DHHS.
The court also ordered David to participate in the “R-SAFe”
program, a therapeutic program focused on the specific needs
of individuals who have been identified as sex offenders.
Sometime after this disposition hearing, David contacted
the R-SAFe program and began meeting with the coordina-
tor of the program to complete the “assessment phase” of
the therapeutic process. David attended three sessions in July
2007. During his third session, David was informed that he
would have to submit to a polygraph test as a part of the
intake process. At a subsequent session, David stated that he
did not want to continue with the program. He believed that
he had not done anything wrong and that to participate in the
program any further would force him to incriminate himself in
some way.
on August 9, 2007, the State filed a motion for termination
of David’s parental rights. In the motion, the State alleged that
Kenna was a child within the meaning of § 43-292(6) and (7)
and that it would be in Kenna’s best interests if David’s paren-
tal rights were terminated.
After David’s involvement with the R-SAFe program had
ceased and a few weeks prior to the hearing on the State’s
motion to terminate his parental rights, he inquired about
other sex-offender-specific treatment or therapy providers.
David ultimately set up an appointment with Dr. Skulsky
and completed a psychological evaluation. In the evalua-
tion report, Dr. Skulsky recommended that David partici-
pate in psychotherapy to address his mental health issues.
IN Re INTeReST oF KeNNA S. 	549
Cite as 17 Neb. App. 544

Dr. Skulsky stated that he did not possess enough information
to determine whether David had, in fact, sexually assaulted
his stepdaughter.
Ultimately, the juvenile court found that the State presented
insufficient evidence to terminate David’s parental rights. The
State appeals from the decision here.
III. ASSIGNMeNTS oF eRRoR
The State alleges that the juvenile court erred in failing
to find that the statutory grounds for termination of David’s
parental rights with regard to Kenna under § 43-292(6) and (7)
were proven and in failing to find that such termination was in
the best interests of Kenna.
IV. ANAlYSIS
1. standard of revIew
[1,2] 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. In re Interest
of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007). When
the evidence is in conflict, however, an appellate court may
give weight to the fact that the lower court observed the wit-
nesses and accepted one version of the facts over the other.
See In re Interest of Dylan Z., 13 Neb. App. 586, 697 N.W.2d
707 (2005).
[3] For a juvenile court to terminate parental rights under
§ 43-292, it must find that one or more of the statutory grounds
listed in this section have been satisfied and that such termina-
tion is in the child’s best interests. See In re Interest of Xavier
H., supra. The State must prove these facts by clear and con-
vincing evidence. See id.
2. procedure at termInatIon hearIng
before we begin our discussion of the State’s argument that
the juvenile court erred in failing to terminate David’s parental
rights, we first determine the evidence we are to consider in
our analysis.
As we mentioned above, there were abnormalities in the
manner the termination hearing was conducted. The termination
550 	17 NebRASKA APPellATe RePoRTS

hearing began in November 2007. At the conclusion of the par-
ties’ presentation of evidence, both parties rested and gave
closing arguments. The juvenile court requested that the parties
brief the issues and set up a briefing schedule. The juvenile
court then indicated that David should continue to work with
DHHS to complete his rehabilitation plan. The court stated it
would revisit the case in less than 90 days.
In March 2008, the parties again appeared before the juvenile
court. At this hearing, the court heard testimony and accepted
evidence concerning David’s progress in therapy. The court
continued the hearing to allow David more time to engage in
the therapeutic process.
In June 2008, another hearing was held. Again, the parties
appeared before the juvenile court, and again, the court heard
testimony and accepted evidence concerning David’s progress
in therapy. Again, the court continued the hearing to allow
David more time to engage in the therapeutic process.
In July 2008, the juvenile court determined that the State
did not provide sufficient evidence to warrant termination of
David’s parental rights. The court did indicate that it “base[d
its] decision . . . upon what’s been submitted as of November
16th . . . .” However, the court also mentioned David’s efforts
in therapy since the November 2007 hearing.
We note that the juvenile court’s decision to accept further
evidence after the November 2007 hearing resulted in confu-
sion and an unclear record. Upon our review, we conclude
that the case was submitted after the November hearing,
pending the submission of briefs. The parties had presented
all of their evidence and had rested their cases. Accordingly,
the only evidence we consider in our analysis of whether
the State met its burden in proving that David’s parental
rights should be terminated is the evidence presented at the
November hearing.
3. statutory grounds for termInatIon
The State assigns as error the juvenile court’s failure to
find that it presented clear and convincing evidence to prove
the statutory grounds for termination of David’s parental
rights. In the State’s motion to terminate David’s parental
IN Re INTeReST oF KeNNA S. 	551
Cite as 17 Neb. App. 544

rights, it alleged that termination was appropriate pursuant
to § 43-292(6) and (7). Upon our de novo review, we agree
with the State’s assertions that it presented sufficient evidence
to prove a statutory basis for termination of David’s parental
rights. Specifically, we find that the evidence clearly and con-
vincingly established that Kenna was in an out-of-home place-
ment for at least 15 of the most recent 22 months, pursuant to
§ 43-292(7).
Termination of parental rights is warranted whenever one or
more of the statutory grounds provided in § 43-292 are estab-
lished. Section 43-292(7) provides for termination of parental
rights when “[t]he juvenile has been in an out-of-home place-
ment for fifteen or more months of the most recent twenty-two
months.” This section operates mechanically and, unlike the
other subsections of the statute, does not require the State to
adduce evidence of any specific fault on the part of a parent.
See In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d
164 (2005).
In this case, the record contains uncontradicted evidence
that Kenna was removed from David’s care in January 2006
and that she continuously resided in an out-of-home place-
ment throughout the pendency of the proceedings. As a result,
at the time of the filing of the State’s motion to termi-
nate David’s parental rights in August 2007, Kenna had been
in an out-of-home placement for approximately 19 months.
Accordingly, it is clear that Kenna was in an out-of-home
placement for 15 or more months of the most recent 22 months
as § 43-292(7) requires.
We note that the record indicates that David was incarcerated
from February to June 2007. David’s 4-month incarceration
occurred during the 22 months immediately prior to the State’s
filing of the motion for termination of parental rights. There
is some discussion in the record and in the parties’ appellate
briefs regarding the effect of David’s incarceration on the calcu-
lation of how long Kenna has been in an out-of-home place-
ment for the purposes of § 43-292(7).
[4] This court has previously described the proper applica-
tion of § 43-292(7) as follows:
552 	17 NebRASKA APPellATe RePoRTS

The proper application of this subsection consists of
counting the most recent 22 months preceding the filing
of the petition to terminate parental rights, followed by
counting how many of those 22 months the child was
in out-of-home placement. If the child was in out-of-
home placement for 15 of those 22 months, the statutory
grounds for termination of parental rights are satisfied
and termination of parental rights is appropriate, subject
to a determination that such termination is in the child’s
best interests.
In re Interest of Kindra S., 14 Neb. App. 202, 210, 705 N.W.2d
792, 801 (2005). In addition, this court has held that “[i]n a
case of termination of parental rights based on § 43-292(7), the
protection afforded the rights of the parent comes in the best
interests step of the analysis.” In re Interest of Kindra S., 14
Neb. App. at 209-10, 705 N.W.2d at 800.
Given the mechanical manner in which § 43-292(7) is to
be applied, we find that the time that David spent incarcerated
need not be excluded from our determination of whether Kenna
was in out-of-home placement for 15 of the 22 months immedi-
ately preceding the motion to terminate parental rights. Rather,
we find that David’s incarceration is a factor to consider in the
best interests step of the analysis of whether his parental rights
should be terminated.
There is clear and convincing evidence that termination of
David’s parental rights was appropriate pursuant to § 43-292(7).
In light of our finding, we move to the next step in our analysis
and examine whether the State proved by clear and convinc-
ing evidence that termination of David’s parental rights is in
Kenna’s best interests.
4. best I nterests
The State asserts that the juvenile court erred in failing to
find that it had presented sufficient evidence to demonstrate
that termination of David’s parental rights is in Kenna’s best
interests. essentially, the State alleges that because David
failed to complete a sex-offender-specific treatment or therapy
program, he failed to adequately comply with his court-ordered
IN Re INTeReST oF KeNNA S. 	553
Cite as 17 Neb. App. 544

rehabilitation plan, failed to become rehabilitated, and failed to
prove himself a “fit” parent.
Upon our de novo review of the record, we find sufficient
evidence to demonstrate that David has not complied with
his court-ordered rehabilitation plan and that termination of
David’s parental rights is in Kenna’s best interests. We, there-
fore, reverse the order of the juvenile court and remand the
matter with directions to terminate David’s parental rights as
to Kenna.
In the previous section, we found that termination of David’s
parental rights was appropriate pursuant to § 43-292(7). As
a result, we declined to address the sufficiency of the evi-
dence demonstrating that termination was also appropriate
pursuant to § 43-292(6). We, therefore, treat our discussion
of whether terminating David’s parental rights is in Kenna’s
best interests as though § 43-292(7) is the only statutory basis
for termination.
In cases where termination of parental rights is based solely
on § 43-292(7), the Nebraska Supreme Court has held that
appellate courts must be particularly diligent in their de novo
review of whether termination of parental rights is, in fact, in
the child’s best interests. In re Interest of Aaron D., 269 Neb.
249, 691 N.W.2d 164 (2005). In such a situation, because
the statutory ground for termination does not require proof
of such matters as abandonment, neglect, unfitness, or abuse,
as the other statutory grounds do, proof that termination of
parental rights is in the best interests of the child will 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 § 43-292. In re Interest of Aaron
D., supra.
[5,6] 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. In re
Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548
(1997). Furthermore, the Nebraska Supreme Court has previ-
ously recognized that children cannot, and should not, be sus-
pended in foster care, nor be made to await uncertain parental
maturity. Id.
554 	17 NebRASKA APPellATe RePoRTS

In this case, the evidence shows that despite almost 2
years of efforts by DHHS and the juvenile court, David has
been unable or unwilling to rehabilitate himself. Kenna was
adjudicated as a child within the meaning of § 43-247(3)(a)
because of allegations that David had sexually assaulted his
stepdaughter and had possessed child pornography. As a result
of these allegations, the juvenile court ordered David to com-
plete sex-offender-specific treatment or therapy. David did not
comply with the court’s orders regarding the sex offender treat-
ment, and as a result, he did not correct the conditions that led
to Kenna’s adjudication.
David was first ordered to complete sex offender treatment
in January 2007. There is no indication that David took any
steps toward achieving this goal from January to February
2007, before David was incarcerated. David did not contact
any agencies about beginning sex offender treatment, nor did
he discuss his options with the family’s caseworker, during
that time.
The record indicates that David was incarcerated from
February to June 2007. While we understand that David’s
incarceration may have precluded him from engaging in sex
offender treatment from February to June 2007, we also note
that David could have taken steps to inquire about or set up
a treatment program while he was still in jail. However, the
family’s caseworker testified that she did not have any contact
with David during his incarceration.
After David was released from jail in early June 2007, he
did not take any active steps toward achieving the goals of
his rehabilitation plan. He did not seek out sex offender treat-
ment from that time through mid-June 2007, when a hearing
was held in the juvenile court to review Kenna’s case. At the
June hearing, the juvenile court ordered David to complete the
R-SAFe program, a sex-offender-specific treatment program.
David began meeting with the coordinator of the R-SAFe
program on July 9, 2007. He attended approximately four ses-
sions, but ended his involvement with the program in August
after learning in July that he would have to submit to a poly-
graph test. David informed the coordinator of the program
that to participate any further would force him to incriminate
IN Re INTeReST oF KeNNA S. 	555
Cite as 17 Neb. App. 544

himself; he stated to the coordinator’s assistant that he had not
done anything wrong.
The State filed its motion to terminate David’s parental
rights in August 2007. After this motion was filed, David began
to inquire with DHHS about other possible treatment providers
for the sex offender treatment. David’s caseworker contacted
providers to ascertain whether they would be able to provide
him with a sex offender treatment program. Ultimately, David
contacted Dr. Skulsky, and in october, he underwent a psycho-
logical evaluation.
Taken as a whole, the evidence reveals that David was
no closer to completing a sex offender treatment program at
the November 2007 parental rights termination hearing than
he was in January 2007, when such treatment was initially
ordered. David continually put off the court’s order concern-
ing sex offender treatment. David did not participate in sex
offender treatment in January after such treatment was ordered.
When David was released from jail in early June, he did not
participate in sex offender treatment. It was only after the mid-
June hearing that David took any steps toward completing sex
offender treatment. However, David attended only four sessions
at the R-SAFe program before he quit. David did not begin
attending other sex offender treatment until october 2007,
months after the motion to terminate his parental rights had
been filed.
[7,8] We briefly digress to discuss the possible implication
of David’s assertion that he left the R-SAFe program because
he did not want to incriminate himself by participating in the
program or to admit that he had sexually assaulted his step-
daughter. This court has previously found that courts may not
terminate parental rights on the sole basis that a parent refuses
to waive his or her right against self-incrimination. See In re
Interest of Clifford M. et al., 6 Neb. App. 754, 577 N.W.2d
547 (1998). However, termination of parental rights may be
based on a parent’s failure to undergo meaningful therapy.
See id.
Initially, we note that our analysis of David’s noncompli-
ance with the juvenile court’s order to complete sex offender
treatment 	does 	not 	center 	on 	David’s 	termination 	of 	his
556 	17 NebRASKA APPellATe RePoRTS

involvement with the R-SAFe program. Rather, our analysis
focuses on David’s procrastination at seeking out any sex
offender treatment.
Additionally, we note that evidence in the record is con-
flicting concerning why David stopped attending the R-SAFe
program. The coordinator of the program testified that David
stopped attending because he did not want to incriminate him-
self by continuing to participate. David testified that he stopped
attending because he did not want to sign a piece of paper stat-
ing that he had sexually assaulted his stepdaughter. David indi-
cated that he was willing to take a polygraph examination to
prove he was innocent. other evidence in the record indicates
that David had already pled guilty or no contest to a charge
stemming from the sexual assault allegations, which suggests
that further prosecution for the sexual assault allegations may
have been precluded.
based on all of the evidence presented at the termination
hearing, we conclude that this is not a case where David failed
to engage in meaningful therapy solely because he did not
want to incriminate himself. Rather, the evidence suggests that
David did not believe that he needed sex offender treatment,
did not want to participate in the treatment, and chose to delay
compliance until it was too late.
[9] At the time of the November 2007 termination hearing,
Kenna had been out of David’s home for almost 2 years. In
fact, as a result of a no contact order stemming from David’s
criminal charges and as a result of David’s failure to comply
with the sex offender treatment, David had not seen or talked
to Kenna for almost 2 years. Despite the amount of time that
had passed, David had not complied with the juvenile court’s
order to complete sex offender treatment. Rather, David con-
tinually put off the court’s order. Testimony at the termination
hearing revealed that sex offender treatment can often take 2
years. Testimony at the termination hearing also revealed that
David would not be ready to regain custody of Kenna until he
had completed such treatment. In fact, David would not be able
to have any contact with Kenna until he had made significant
progress in his sex offender treatment. Where the duration
of a child’s out-of-home placement warrants termination of
IN Re INTeReST oF KeNNA S. 	557
Cite as 17 Neb. App. 544

parental rights under § 43-292(7), a parent’s failure to substan-
tially comply with court-ordered sex offender treatment weighs
in favor of a finding that such termination is in the child’s
best interests.
Kenna should not be made to wait indefinitely for David
to rehabilitate himself. She deserves permanency and stabil-
ity. Although David was made aware that he could not regain
custody or have contact with Kenna until he participated in sex
offender treatment, he continuously delayed his participation
in the treatment. based on this evidence, we find sufficient
evidence to demonstrate that termination of David’s parental
rights is in Kenna’s best interests. We reverse the order of the
juvenile court and remand the matter with directions to termi-
nate David’s parental rights as to Kenna.
V. CoNClUSIoN
We find that the State presented sufficient evidence to
demonstrate that Kenna is a child within the meaning of
§ 43-292(7) and that termination of David’s parental rights is
in Kenna’s best interests. Accordingly, we reverse the order of
the juvenile court which denied the State’s motion to terminate
David’s parental rights. We remand the matter with directions
to enter an order terminating David’s parental rights.
reversed and remanded wIth dIrectIons.
I rwIn, Judge, dissenting.
I respectfully dissent from the conclusion of the majority
that the State presented sufficient evidence to demonstrate
that termination of David’s parental rights is in Kenna’s best
interests. Contrary to the conclusion of the majority, there is
insufficient evidence in the record to establish that termination
of David’s parental rights is in Kenna’s best interests. For this
reason, I would affirm the determination of the juvenile court
which found that the State failed to prove by clear and convinc-
ing evidence that termination of David’s parental rights is in
Kenna’s best interests.
The majority concentrates its analysis of whether terminat-
ing David’s parental rights is in Kenna’s best interests exclu-
sively on David’s failure to complete a sex offender treatment
program. The majority concludes that evidence in the record
558 	17 NebRASKA APPellATe RePoRTS

establishes that “David did not believe that he needed sex
offender treatment, did not want to participate in the treatment,
and chose to delay compliance until it was too late.”
There is no evidence in the record to suggest that David
intentionally delayed participating in a treatment program.
Rather, the evidence reflects that David sought out treatment
when ordered to do so and worked to find a program suited
to his individual needs. evidence in the record revealed that a
sex offender treatment program can last up to 2 years. Simply
stated, David did not complete a sex offender treatment pro-
gram because there was not enough time to complete such
a program.
Kenna was not adjudicated as a child within the meaning of
§ 43-247(3)(a) until November 2006. David was not ordered to
complete sex offender treatment until approximately 2 months
after that, in January 2007.
Additionally, David was incarcerated from February to June
2007. While this incarceration does not necessarily excuse
David’s noncompliance with the rehabilitation plan, there was
evidence to suggest that David was not able to participate in
sex offender treatment while he was in jail.
After David was released from jail in June 2007, the court
ordered him to complete the R-SAFe program, a sex-offender-
specific treatment program. David began meeting with the
coordinator of the program on July 9. He attended approxi-
mately four sessions. He ended his involvement with the
program after learning that to participate in this particular pro-
gram, he would have to admit that he had sexually assaulted
his stepdaughter.
Shortly after David ended his involvement with the R-SAFe
program, the State filed its motion to terminate his paren-
tal rights. While this motion was pending, David inquired
with DHHS about other possible treatment providers for the
sex offender treatment. David’s caseworker contacted multiple
providers on his behalf to ascertain whether they would be
able to provide him with a sex offender treatment program.
Ultimately, in September 2007, David contacted Dr. Skulsky,
and in october, he underwent a psychological evaluation and
began treatment.
IN Re INTeReST oF KeNNA S. 	559
Cite as 17 Neb. App. 544

Therefore, when the evidence is taken as a whole, David
was allowed only approximately 7 months to complete a sex
offender treatment program. David was in jail for 4 out of
those 7 months. As such, David was essentially provided with
3 months to complete sex offender treatment.
even though David was not provided with a great deal of
time to comply with the court’s order, David did attempt to
achieve compliance, and his efforts are clearly detailed in
the record. He began attending the R-SAFe program just 25
days after the court ordered him to participate in that specific
program. For 3 weeks thereafter, he attended one session a
week. While David did discontinue his involvement with this
program during the initial stage of the process, he explained
that he did so because part of the program required him to
“incriminat[e] himself.”
After the State filed its motion to terminate his parental
rights, David continued his efforts to comply with the court’s
order. He began to independently search for a different treat-
ment provider for the sex offender treatment. At the time of
the termination hearing, David was participating in a treatment
program with Dr. Skulsky. As demonstrated at the termination
hearing, David’s efforts at compliance do not evidence a per-
son who was intentionally delaying treatment. In fact, the only
substantive evidence of any voluntary delay at compliance that
the majority articulates is David’s decision to discontinue treat-
ment with the R-SAFe program. However, David’s decision to
discontinue his involvement with that program can be traced
to his disagreement with some of the program’s requirements,
rather than to any attempt to delay his treatment.
Most notably, David declined to admit that he sexually
assaulted his stepdaughter, which admission was a mandatory
program requirement. David testified that he did not want
to “incriminat[e] himself” with such an admission. While
David’s concern is not necessarily legally sound, it is not
wholly unreasonable; nor does his concern rise to the level of
proof that he was trying to delay treatment or that he had no
intention of ever completing treatment, as the majority appears
to infer.
560 	17 NebRASKA APPellATe RePoRTS

Furthermore, the evidence reveals that David began to search
for a more suitable program almost immediately after he termi-
nated his involvement with R-SAFe. Such behavior is not con-
sistent with someone who “did not believe that he needed sex
offender treatment, did not want to participate in the treatment,
and chose to delay compliance until it was too late.” Rather,
this evidence indicates that David was working to comply with
the court’s orders, to rehabilitate himself, and to be reunited
with Kenna.
While it is true that Kenna should not be made to wait
indefinitely for David to rehabilitate himself, it is important to
recognize the importance of granting a parent adequate oppor-
tunity to effectuate rehabilitation. David should be provided
with an adequate opportunity to comply with the court’s reha-
bilitation plan.
David was provided with approximately 3 months to com-
plete a treatment program. evidence in the record revealed
that a sex offender treatment program can last up to 2 years.
David’s failure to complete his treatment during this brief time
period does not, without more, establish that termination of his
parental rights is in Kenna’s best interests.
IN Re INTeReST oF KeNNA S. 	561
Cite as 17 Neb. App. 544