In re Interest of Kendra M. et al.

I n re I nterest of K endra M. et al ., chIldren under
18 years of age .
state of nebrasKa , appellee , v. lIsa g., appellant.
814 N.W.2d 747
Filed June 15, 2012. 	No. S-11-695.
1. Judges: Recusal: Appeal and Error. A motion to disqualify a trial judge on
account of prejudice is addressed to the sound discretion of the trial court. An
order overruling such a motion will be affirmed on appeal unless the record estab-
lishes bias or prejudice as a matter of law.
2. 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. When the evidence is in conflict, however, 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. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
4. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, a judge
must recuse himself or herself from a case if the judge’s impartiality might rea-
sonably be questioned.
5. Judges: Recusal: Proof. In order to demonstrate that a trial judge should have
recused himself or herself, the moving party must demonstrate that a reason-
able person who knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness, even though no actual
bias or prejudice was shown.
6. Judges: Recusal: Presumptions. A party seeking to disqualify a judge on the
basis of bias or prejudice bears the heavy burden of overcoming the presumption
of judicial impartiality.
7. Parental Rights: Proof. In order to terminate an individual’s parental rights,
the State must prove by clear and convincing evidence that one of the statutory
grounds enumerated in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2010) exists and
that termination is in the child’s best interests.
8. Statutes: Legislature: Public Policy. It is the Legislature’s function through the
enactment of statutes to declare what is the law and public policy.
9. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court
gives statutory language its plain and ordinary meaning.
10. Parental Rights: Proof. The fact that a child has been placed outside the home
for 15 or more months of the most recent 22 months does not demonstrate paren-
tal unfitness.
11. ____: ____. Only one statutory ground for termination need be proved in order
for parental rights to be terminated.
12. Constitutional Law: Parental Rights: Proof. A parent’s right to raise his or
her child is constitutionally protected; so before a court may terminate parental
rights, the State must also show that the parent is unfit.
1014 	283 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

13. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that
the best interests of a child are served by having a relationship with his or her
parent. based on the idea that fit parents act in the best interests of their children,
this presumption is overcome only when the State has proved that the parent
is unfit.
14. Child Custody: Words and Phrases. parental unfitness means a personal defi-
ciency or incapacity which has prevented, or will probably prevent, performance
of a reasonable parental obligation in child rearing and which has caused, or
probably will result in, detriment to a child’s well-being.
15. Parental Rights. The best interests analysis and the parental fitness analysis are
fact-intensive inquiries. And while both are separate inquiries, each examines
essentially the same underlying facts as the other.
Appeal from the County Court for Merrick County: lInda s.
caster senff, Judge. Affirmed.
Rachel A. Daugherty, of Myers & Daugherty, p.C., L.L.O.,
for appellant.
Lynelle Homolka, Merrick County Attorney, for appellee
State of Nebraska.
Matthew C. boyle, of Lauritsen, brownell, brostrom &
Stehlik, guardian ad litem for appellant.
Jerom e. Janulewicz, of Mayer, burns, koenig & Janulewicz,
guardian ad litem.
heavIcan, c.J., WrIght, connolly, stephan, MccorMacK,
and MIller-lerMan, JJ.
stephan, J.
Lisa G., the biological mother of kendra M., Matthew G.,
and katrina G., appeals from an order of the county court for
Merrick County, sitting as a juvenile court, terminating her
parental rights to the three minor children. paternal rights are
not at issue in this case. We affirm.
bACkGROUND
The facts relevant to the issues in this appeal span a period
of several years. because resolution of the appeal is highly
dependent upon these facts, we recount them in some detail.
IN Re INTeReST OF keNDRA M. eT AL. 	1015
Cite as 283 Neb. 1014

faMIly M eMbers and relatIonshIps
Lisa has given birth to eight children, including two sets of
twins. Her first children, twin girls, were born in July 1994.
kendra was born in March 1996, Matthew in June 1998, and
katrina in September 1999.
In October 2008, Lisa gave birth to another set of twin girls,
Dakota S. and Destiny S., and her son Johnathan F. was born in
October 2010. Mark F. is Johnathan’s father and Lisa’s current
boyfriend. Dakota, Destiny, and Johnathan reside with Mark
and Lisa, and Lisa’s parental rights with respect to those three
children are not at issue in this case.
Lisa’s mother is paula b. At all relevant times, Robert L.
was paula’s boyfriend. Teresa R. and Gregory R. (Greg) are the
court-appointed guardians of kendra, Matthew, and katrina.
lIsa’s hIstory WIth nebrasKa departMent
of health and huMan servIces
The twin girls born in 1994 were twice hospitalized in the
months following their births. Lisa’s visits to the hospital were
minimal, and she showed little interest in the twins. petitions
to adjudicate each twin based on Lisa’s neglect were filed in
Red Willow County, Nebraska, in November 1994. Lisa failed
to make progress on her case plan, and her parental rights to
the twins were terminated in August 1998. The order termi-
nating Lisa’s parental rights was appealed and affirmed by
this court.1
In November 1998, when Matthew was nearly 5 months
old and kendra was 2 years old, the Nebraska Department of
Health and Human Services (DHHS) received a report regard-
ing the condition of Lisa’s home. An investigation revealed
that the home contained dog excrement and was filled with
junk. The home’s source of heat was an unguarded stove that
presented a burn hazard to the children. Lisa cleaned the home,
but the stove remained unguarded. Lisa thereafter refused to let
DHHS officials into her home.
1 In re Interest of Rachael M. & Sherry M., 258 Neb. 250, 603 N.W.2d 10
(1999).
1016 	283 NebRASkA RepORTS

Due to ongoing concerns with the condition of the home,
Lisa’s lack of cooperation with DHHS, and kendra’s slow
development, a juvenile petition with respect to kendra and
Matthew was filed in Clay County, Nebraska, in January 1999.
The children were adjudicated in March and placed in the legal
custody of DHHS but remained in Lisa’s care.
In June 1999, Lisa reported suspicions that kendra, then 3
years old, had been sexually molested. Lisa reported that in
mid-January, kendra began stripping herself and acting out
sexually following a night she spent with paula and Robert.
kendra apparently said, “‘bob did it.’” Robert was charged
with sexual assault, but the case was later dismissed. Robert
was a registered sex offender, and Lisa had been warned by
several parties prior to this time not to leave the children alone
with him. The juvenile case filed in January 1999 was dis-
missed on May 16, 2000. At the time, Lisa was seeing to the
children’s needs and was employed.
In October 2004, a DHHS employee visited Lisa’s home
after receiving a report of a red mark under kendra’s eye.
Despite kendra’s claim that paula caused the bruise by inten-
tionally hitting her, the report was closed as unfounded. During
the visit, Lisa told the DHHS employee that she and the chil-
dren were living with paula and Robert. The employee told
Lisa that Robert was a convicted sex offender and that the
conviction stemmed from sexually assaulting young boys simi-
lar in age to kendra and Matthew. Lisa allegedly responded
by stating that she had no concerns about Robert and felt that
Robert was falsely convicted of the crimes. Lisa denied ever
saying that Robert was falsely accused, but admitted she knew
as of October 2004 that Robert had a sexual assault convic-
tion. Lisa also testified that Robert was not living with her in
October 2004 and that although paula moved in with her at a
later date, she did not allow Robert to also live with her and
the children.
adJudIcatIon of K endra ,
M attheW, and K atrIna
On February 15, 2005, Lisa went to a community agency
seeking relocation assistance and reported that Robert had
IN Re INTeReST OF keNDRA M. eT AL. 	1017
Cite as 283 Neb. 1014

sexually assaulted the children. Lisa reported that a few days
earlier, she had heard Robert hit Matthew and then take him
into the bathroom. She heard Matthew screaming “‘stop’”
and “‘no.’” At the same time, paula was physically assaulting
kendra and Lisa was trying to stop that assault. Lisa reported
that when Matthew came out of the bathroom, he was pulling
up his pants. Lisa further reported that she left the children
alone with paula and Robert following this incident, but she
later denied doing so.
Following Lisa’s report, the children were interviewed.
kendra and Matthew disclosed physical and sexual abuse, and
katrina disclosed physical abuse. paula and Robert were each
charged with sexual assault of a child and felony child abuse.
Robert entered a plea of no contest to the felony child abuse
charge, for which he was sentenced to 4 to 5 years’ imprison-
ment. paula pled no contest to misdemeanor child abuse and
was sentenced to 75 days’ imprisonment.
The three children were removed from Lisa’s care on
February 16, 2005. The petition which commenced this pro-
ceeding was filed on February 23 and alleged that kendra,
Matthew, and katrina were juveniles as defined by Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2004), because they lacked proper
parental care. The children have not resided with Lisa since
February 16.
case plans and lIsa’s progress prIor
to guardIanshIp placeMent
Following the children’s February 2005 adjudication and
removal, several case plans with a permanency objective of
reunification were adopted. The case plans required Lisa to
schedule and complete a psychological evaluation, to seek out
medical or psychiatric help to determine if she needed antide-
pressant medication, and to participate in individual counsel-
ing. The case plans further required Lisa to maintain regular
contact with the case manager, to complete a multiweek parent-
ing class, to participate in supervised visits with the children,
to demonstrate age-appropriate parenting and activities, to not
associate with any person with a current criminal record or a
past record of violent or sexual crimes, and to schedule and
1018 	283 NebRASkA RepORTS

complete a parenting assessment. Lisa was also required to
maintain gainful employment and an appropriate residence, to
not reside with other adults, and to make and maintain a bud-
get. As of March 3, 2006, Lisa was substantially complying
with all of these requirements.
but by September 25, 2006, Lisa’s progress had declined.
Sometime between March 3 and September 25, Lisa stole
$750 from a neighbor, while the children were watching, dur-
ing an unsupervised visit. During this time, Lisa also sent the
children to neighbors’ homes to ask for money and cigarettes
during unsupervised visits. These incidents caused Lisa to lose
her weekly, unsupervised visits. She was also convicted of
theft and sentenced to 2 years’ probation for stealing the $750,
and lost her job as a result of her arrest. by May, Lisa was
unable to pay rent, and she moved into a shelter. She left in
August, against the advice of professionals, and moved in with
a man who had twice been convicted of domestic assault and
had protection orders against him from two different women.
During this time period, Lisa was having difficulty follow-
ing budget advice and had taken on obligations she could
not afford.
Lisa found employment on November 20, 2006, but was
unable to work regularly due to an arm injury, and her employ-
ment was terminated on January 21, 2007. Lisa was employed
again for a 1-week period in May, but as of July 16, she had
not found other employment.
In September 2006, Lisa moved into a motel with a man
who was on probation for driving under the influence, third
offense. She lived with him until January 2007, when he was
jailed for a probation violation. Lisa then moved into a shelter,
where she resided until she moved into an apartment in June.
She received assistance for June and July rent from DHHS and
other agencies.
In a court report dated July 16, 2007, DHHS recom-
mended termination of Lisa’s parental rights, based upon the
extensive services it had provided, Lisa’s lack of progress,
and the children’s 29-month out-of-home placement. The
report explained that Lisa was given every possible service
in and out of her community and that she was no closer
IN Re INTeReST OF keNDRA M. eT AL. 	1019
Cite as 283 Neb. 1014

to providing a safe, stable home for her family than when
the case was opened. Those services included assistance
in obtaining employment, visitation services, gas vouchers,
motel vouchers, referrals to community agencies, counseling,
and psychological evaluations. In July 2007, the court found
that Lisa had not followed the case plan, but did not order
any specific disposition.
In October 2007, Lisa began “helping out a neighbor . . .
with rides,” but stopped when she learned that he was on “‘fur-
lough.’” The neighbor had an extensive criminal history which
included drug offenses, burglary, assault, receiving stolen prop-
erty, and possession of a deadly weapon by a felon. Lisa had
begun another job in late July 2007, but was dismissed in
December for not being available to work, not showing up
for scheduled shifts, and demanding too much time off. Lisa
moved to a mobile home in Chapman, Nebraska, in October
2007, but by January 2008, she was behind on rent and utility
bills, and she was evicted.
In January 2008, the children’s therapist wrote a letter to the
court addressing the potential termination of parental rights.
The therapist opined that if Lisa’s rights were terminated,
the children would be devastated and their progress would
be disrupted. The therapist noted the children had a strong
bond with Lisa and opined that termination was not in their
best interests.
The court did not terminate Lisa’s parental rights in 2008,
but did change the permanency objective from reunification to
guardianship. Teresa and Greg were proposed as guardians, and
in February 2008, the children began transitioning from foster
care into Teresa and Greg’s home. Lisa was advised to “step
back” to allow the children to bond with Teresa and Greg. but
visits between Lisa and the children were scheduled during the
transitional period, including three in February 2008 that Lisa
failed to attend. Visits were then put on hold until Lisa con-
tacted DHHS in June, and two or three visits occurred between
June and July.
A new case plan and a progress report were prepared in
July 2008, requiring Lisa to regularly participate in scheduled,
supervised visits. Lisa contacted the caseworker in August to
1020 	283 NebRASkA RepORTS

inform her she was on bed rest due to her pregnancy. She gave
birth to Dakota and Destiny in late October 2008. kendra,
Matthew, and katrina came to the hospital to visit Lisa and
the babies.
At the time of the birth, Lisa was living at a motel with
Dakota and Destiny’s father. Around this time, Lisa was
accused of theft of services for overreporting her hours while
housekeeping at the motel. The allegation was dropped when
Lisa paid $150 in restitution. Lisa, Dakota and Destiny’s
father, and Dakota and Destiny moved to another residence in
January 2009.
guardIanshIp placeMent and
lIsa’s progress thereafter
On January 21, 2009, Teresa filed a petition requesting
that she and Greg be appointed as the children’s guard-
ians. Lisa consented to the appointment, and Teresa and
Greg were appointed guardians on March 4. The caseworker
noted that since being placed in Teresa and Greg’s home in
February 2008, the children had improved, had good grades,
and were happy.
The caseworker’s involvement ended when the guardians
were appointed, and DHHS stopped providing services to Lisa
at that time. Lisa testified she had not been subject to a case
plan since the guardianship went into effect. At about this
time, Lisa began working part time, 15 to 20 hours per week,
earning $6 per hour plus tips. She worked for that employer
through February 2011, when she sought and obtained full-
time employment.
Lisa left the father of Dakota and Destiny and began resid-
ing with Mark and his son in July 2009. After Mark’s son left
the residence in August, Mark disclosed to Lisa that his son
had been convicted of molesting his younger siblings. Mark’s
son occasionally visited the residence after that, but Dakota
and Destiny were never left alone with him.
Johnathan was born in October 2010. In February 2011,
Lisa, 	Mark, 	Dakota, 	Destiny, 	and 	Johnathan 	moved 	into
a four-bedroom house, which could be converted to have
five bedrooms. Lisa and Mark share the $900 monthly rent.
IN Re INTeReST OF keNDRA M. eT AL. 	1021
Cite as 283 Neb. 1014

Since January 2011, Mark has been employed as a mainte-
nance worker, earning $15 per hour. At her new full-time
job, Lisa earns $4 per hour as a server and $10 per hour as
a supervisor.
Despite progress in other areas of her life, Lisa’s visits
with the children became sporadic after the guardians were
appointed. In April 2009, Lisa and Teresa scheduled a visit
with the children at a therapist’s office, but Lisa canceled the
visit. Lisa then did not contact Teresa to arrange visitation for
almost 1 year. On April 1, 2010, Teresa, kendra, Matthew,
katrina, Lisa, Dakota, and Destiny attended a family therapy
session. Judy Melius, the children’s new therapist, conducted
the session. One purpose was to further Lisa’s relationship
with the children to allow for more visits. The children had
requested overnight visits with Lisa, and Melius wanted to
ensure that the children were ready and that Lisa was in
agreement. early in the session, Lisa and the children were
reminiscing and laughing. but Lisa later became angry. Lisa
explained she was upset with Teresa and DHHS and started
raising her voice. Melius observed that Matthew was becoming
visibly upset, and Melius ended the session.
Melius then cautioned Teresa that further visits between Lisa
and the children would not be in the children’s best interests.
but the children told Teresa that they wanted a relationship
with Lisa, Dakota, and Destiny, and Lisa was again permitted
to see her children on April 7 and 8, 2010.
events leadIng to lIsa’s request
to terMInate guardIanshIp
On April 8, 2010, Teresa took the children to visit Lisa in
Hastings, Nebraska. During the visit, katrina told Teresa that
Greg had touched her with his hand under her shirt while
tickling her. Teresa responded, “‘I don’t believe you. If that
[were] true, I would be the first one to report it.’” Lisa heard
this exchange. Teresa allowed Lisa to leave with the chil-
dren, but told her not to take them outside of the Hastings
city limits. Lisa testified that the children continued to insist
that the incident described by katrina had occurred. Lisa
took them to Grand Island, Nebraska, where they spoke with
1022 	283 NebRASkA RepORTS

police. After interviewing the children, Greg, and Teresa,
officials determined that the allegations of abuse were unsub-
stantiated and that the children were safe in the care of
their guardians.
After this episode, the guardians did not allow further con-
tact between Lisa and the children. On October 28, 2010, Lisa
filed a motion requesting that the guardianship be terminated
and on January 12, 2011, moved to establish visitation with
the children.
hearIng on lIsa’s MotIon
to establIsh vIsItatIon
The court held a hearing on the motion to establish visita-
tion on February 24, 2011. In deposition testimony received
at the hearing, Melius discussed the effects of visits between
Lisa and the children. She explained the visits caused kendra
to speak with the tone of a small child and to withdraw in
therapy sessions, resulted in increased anger for Matthew, and
led to nightmares, anger outbursts, and uncontrollable crying
for katrina. Melius also testified that when asked, the chil-
dren said they were not interested in further visits with Lisa.
Melius opined that based on the children’s statements and the
effects of visits described above, further visitation was not in
the best interests of kendra, Matthew, or katrina. Melius had
been the children’s therapist for approximately 21⁄2 years at
the time of this testimony. Following the hearing, the court
denied visitation, finding it would not serve the best interests
of the children.
MotIon to terMInate parental rIghts and
lIsa’s psychologIcal evaluatIon
On March 28, 2011, the guardian ad litem for the children
filed a motion to terminate parental rights. The motion set out
five separate statutory grounds supporting termination and
averred that termination of Lisa’s parental rights was in the
children’s best interests. One of the statutory grounds chal-
lenged Lisa’s mental health.
On 	March 	29, 	2011, 	Lisa 	underwent 	a 	psychological
evaluation performed by John Meidlinger, ph.D., a clinical
IN Re INTeReST OF keNDRA M. eT AL. 	1023
Cite as 283 Neb. 1014

psychologist. Meidlinger had previously evaluated Lisa in
2005 and 2007. His 2011 evaluation suggested a mild or mod-
erate level of defensiveness, which he “frequently found in
persons taking [the evaluation] test for forensic purposes.” The
evaluation also suggested an attempt by Lisa to describe her-
self in a “somewhat unrealistically positive light.” Meidlinger
opined that Lisa’s behavior could lapse due to some very
painful early life experiences. His diagnoses included adjust-
ment disorder with depressed mood, which was based on
Lisa’s sadness about her situation; uncomplicated bereave-
ment due to missing her children; possible bipolar disorder;
and a personality disorder. The personality disorder was an
“Axis II” diagnosis, whereas the others were “Axis I” diag-
noses. Axis I diagnoses are reflective of a person’s current
functioning and are often treatable; Axis II diagnoses reflect
more stable difficulties, such as difficulties in relationships,
personal functioning, self-esteem, and mood regulation, and
are of long duration.
Meidlinger based the personality disorder diagnosis on Lisa’s
instability of self-concept and mood; unpredictability; diffi-
culty in maintaining long-term, positive functioning; tendency
to fall into dependent relationships with destructive males; dif-
ficulty controlling impulses; gaps in moral development; and
difficulty putting the needs of her children ahead of her own.
He had reached the same diagnosis in 2005 and 2007, and at
those times, the diagnosis was also based in part on Lisa’s
narcissistic tendencies and unstable relationships with men.
Meidlinger testified that the nature and severity of a personal-
ity disorder dictate whether the disorder impairs an individual’s
ability to parent.
based on his evaluation, Meidlinger recommended exercis-
ing “great caution” in returning the children to Lisa. He opined
that while she was stable at the time of their meeting, that
was likely “to be changeable over time.” He testified that the
odds were high that she would be unable to maintain a stable
relationship and that her past behavior was the best predictor
of how her life would change in terms of stability if she were
not in a relationship.
1024 	283 NebRASkA RepORTS

hearIng on MotIons to terMInate guardIanshIp
and to terMInate parental rIghts
On June 23 and 24, 2011, the court held a hearing on Lisa’s
motion to terminate the guardianship and the motion of the
children’s guardian ad litem to terminate parental rights. before
testimony was adduced, Lisa made an oral motion for recusal
of the judge, which was based on the fact that in August 1993,
while employed as a deputy county attorney, the judge had
signed an amended information charging Robert with sexual
assault of a child. The judge overruled the motion, stating on
the record that she had no independent recollection of the case
and that she may have only been signing paperwork on her
supervisor’s behalf.
Testimony was then adduced. Teresa testified the children
had adjusted well to living in the guardians’ home. As of June
23, 2011, kendra was 15 years old and had just completed the
eighth grade. She had been diagnosed as “moderately mentally
handicapped” and was seeing Melius on an ongoing basis. She
requires close monitoring because of issues with understand-
ing personal boundaries and interacting with other children.
kendra has an individualized educational plan and receives
special help in all subjects.
Matthew was 13 years old at the time of the hearing. Teresa
described him as “very bright” and “family focused.” katrina
was 11 years old, and while an individualized educational plan
was still in place for her, it had been minimized because she
had been doing very well. Teresa testified that other than the
pending proceeding, she did not foresee anything that would
cause the children to no longer be able to live with her. Teresa
opined that termination of Lisa’s parental rights was in the
children’s best interests. She explained that her home provided
stability and security for the children.
Melius’ deposition testimony from the prior hearing was
reoffered and received. Melius opined that it would not be in
the best interests of any of the three children to have contact
with Lisa, because they did not wish to have such contact
and because the children’s prior anger and behavioral issues
would be likely to return. She testified unequivocally that
IN Re INTeReST OF keNDRA M. eT AL. 	1025
Cite as 283 Neb. 1014

termination of Lisa’s parental rights would be in the best
interests of Matthew and katrina because of Matthew’s need
for permanency and katrina’s fear of renewed contact with
persons who had harmed her in the past. With respect to
kendra, Melius testified that it “would be in her best inter-
est to have stability,” which would allow her to continue to
mature and to not have “periods of time where . . . she is
regressing, struggling at school, withdrawing.”
Lisa testified at the hearing that she was in the most stable
period of her life. She had three children at home, a good job
and residence, and a support group. She said that she had no
difficulty taking care of herself or her young children in the
3 years preceding the hearing and that her mental health had
been stable. She had not been on medication, nor did she need
therapy during this time period. She admitted to having pain,
but said it did not prevent her from parenting her young chil-
dren. She said she no longer needed her mother or her family
and felt it was in the children’s best interests to be placed with
her and their younger siblings.
Lisa testified that she had no difficulty meeting her finan-
cial obligations. She pays $50 per month in child support for
each of the three adjudicated children. As of June 2011, she
was $150 in arrears. She explained this arrearage occurred
when she took time off from work to have Johnathan.
evidence of Mark’s history was also adduced at the hear-
ing. While he had not consumed alcohol in the past few years,
his license had been previously suspended due to a driving
under the influence conviction, and he had been involved in
two bar fights. He was arrested for an alleged sexual assault,
but the charges were later dropped. He was also charged with
possession of drug paraphernalia, which he explained to Lisa
was because he had taken the blame for his son. During his
years with Lisa, Mark has had no issues with the law.
Tonya Taylor, a former agency-level foster care provider,
testified on Lisa’s behalf. As of June 2011, Taylor had known
Lisa and Mark for about 3 years, and she typically saw Lisa
three to four times per week. She testified that based on her
specialized training in foster care, she had no concerns about
Lisa’s interactions with her three young children. She testified
1026 	283 NebRASkA RepORTS

that the children were well fed and had age-appropriate toys
and that the house was clean. She had never seen Lisa place
the children in danger and testified that Lisa was careful
about the people to whom she entrusted her children. She
also said that Mark appeared to be an appropriate parent. She
had not observed anything indicating that Lisa or Mark had
a drug or alcohol problem. She stated that she had known
Lisa to always be employed and that while Mark had been
laid off twice in recent years, he had always soon found
new employment.
order terMInatIng parental rIghts
On July 22, 2011, the court denied Lisa’s motion to termi-
nate the guardianship and terminated her parental rights. In
summarizing the facts, the court noted that it did not find parts
of Lisa’s testimony to be credible. The court found by clear
and convincing evidence that four separate grounds listed in
Neb. Rev. Stat. § 43-292 (Cum. Supp. 2010) supported termi-
nating Lisa’s parental rights.
First, the court concluded that Lisa had substantially and
continuously or repeatedly neglected and refused to give the
children necessary parental care and protection. The court
found that even though services were provided to Lisa, she
was unable to maintain stable employment or housing for
several years following the removal of the children. The court
also found that Lisa had missed scheduled visits with the
children in February 2008 and April 2009 and that while Lisa
requested visits in June 2008, she had stopped those visits by
the end of the month.
The court next found that following the children’s adju-
dication under § 43-247(3)(a), reasonable efforts to preserve
and reunify the family under the direction of the court were
made, and that Lisa failed to correct the conditions leading
to the adjudication. The court noted that although Lisa had
been provided with extensive services, she was still not in a
position to care for her children 21⁄2 years after removal; that
Lisa had failed to maintain a job or housing and continued to
associate with men who had criminal histories or habits not
conducive to living with children; and that the permanency
IN Re INTeReST OF keNDRA M. eT AL. 	1027
Cite as 283 Neb. 1014

goal was changed because Lisa was unable to provide “even
minimal care.”
The court further determined that because the children had
been out of Lisa’s home since February 2005, they had been in
an out-of-home placement for 15 or more months of the most
recent 22 months.
Finally, the court found Lisa was unable to discharge her
parental duties due to a mental illness or deficiency for which
there were reasonable grounds to believe would continue for
a prolonged and indeterminate period. The court gave weight
to the adjustment mood disorder, bipolar disorder, and per-
sonality disorder diagnoses, and to Meidlinger’s opinion that
great caution should be exercised in returning the children
to Lisa. The court also distinguished Lisa’s recent stability,
stating it was “not really that stable” and noting Mark’s crimi-
nal history.
The court found by clear and convincing evidence that ter-
mination of Lisa’s parental rights was in the children’s best
interests. The court noted that the children were doing well in
their current placement, which gave them love, consistency,
and stability; that the children told their therapist they did not
want contact with Lisa; and that Lisa’s “recent limited stabil-
ity” did not overcome the years of neglect and instability. Lisa
timely appealed from this order.
ASSIGNMeNTS OF eRROR
Lisa assigns, summarized and renumbered, that the county
court erred in (1) finding, by clear and convincing evidence,
that (a) Lisa had substantially and continuously or repeatedly
neglected and refused to give parental care and protection to
her children; (b) following the children’s adjudication under
§ 43-247(3)(a), reasonable efforts to preserve and reunify the
family failed to correct the conditions leading to the deter-
mination; (c) the children had been in an out-of-home place-
ment for 15 or more months of the most recent 22 months;
(d) Lisa was unable to discharge her parental responsibilities
because of a mental illness or mental deficiency for which
there were reasonable grounds to believe would continue for
a prolonged and indeterminate period; and (e) termination of
1028 	283 NebRASkA RepORTS

Lisa’s parental rights was in the best interests of the children;
(2) denying Lisa’s motion to terminate the guardianship; and
(3) failing to grant Lisa’s motion for recusal.
STANDARD OF ReVIeW
[1] A motion to disqualify a trial judge on account of preju-
dice is addressed to the sound discretion of the trial court.2
An order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter
of law.3
[2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.4 When the evidence is in conflict,
however, 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.5
[3] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.6
ANALYSIS
MotIon for recusal
[4-6] 	Under 	the 	Nebraska 	Revised 	Code 	of 	Judicial
Conduct, a judge must recuse himself or herself from a case
if the judge’s impartiality might reasonably be questioned.7
Here, Lisa argues that the judge’s impartiality could reason-
ably be questioned and that the judge was biased because she
signed a document in 1993 relating to a criminal case against
Robert. In order to demonstrate that a trial judge should have
2 State v. Nolan, ante p. 50, 807 N.W.2d 520 (2012).
3 Id.
4 In re Interest of Ryder J., ante p. 318, 809 N.W.2d 255 (2012); In re
Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011).
5 In re Interest of Ryder J., supra note 4.
6 In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
7 Neb. Rev. Code of Judicial Conduct § 5-302.11(A). See Tierney v. Four H
Land Co., 281 Neb. 658, 798 N.W.2d 586 (2011).
IN Re INTeReST OF keNDRA M. eT AL. 	1029
Cite as 283 Neb. 1014

recused himself or herself, the moving party must demon-
strate that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown.8 In addition, a party seeking
to disqualify a judge on the basis of bias or prejudice bears
the heavy burden of overcoming the presumption of judi-
cial impartiality.9
There is nothing in the record indicating that the trial judge
had any involvement in Robert’s criminal prosecution other
than signing the amended information, and no evidence con-
tradicted her statements that she did not remember the case.
It was likely that the judge would not have remembered the
case, considering the amended information was filed more
than 17 years prior to the June 2011 hearing. No reason-
able person would have questioned the judge’s impartiality
under these circumstances. Accordingly, we conclude that the
judge did not abuse her discretion in denying Lisa’s motion
for recusal.
statutory grounds for terMInatIon
[7] In order to terminate an individual’s parental rights, the
State must prove by clear and convincing evidence that one
of the statutory grounds enumerated in § 43-292 exists and
that termination is in the child’s best interests.10 As noted, the
trial court found by clear and convincing evidence that four
of the statutory grounds existed, including the circumstance
described in § 43-292(7)—that “[t]he juvenile has been in an
out-of-home placement for fifteen or more months of the most
recent twenty-two months.” It is undisputed that the three chil-
dren have not resided with Lisa since they were removed from
her custody in 2005. but Lisa and her guardian ad litem argue
that for the 22 months preceding the termination hearing, the
8 See Nolan, supra note 2.
9 See, id.; In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259
(2011).
10 See In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320
(2010).
1030 	283 NebRASkA RepORTS

children were in a guardianship placement, which should not
be considered an “out-of-home placement” under § 43-292(7)
in that it was a temporary placement to which Lisa specifically
agreed. They argue it would be bad policy to characterize a
guardianship placement as an “out-of-home placement” which,
if of sufficient duration, could constitute grounds for terminat-
ing parental rights.
[8,9] As we have often noted, it is the Legislature’s function
through the enactment of statutes to declare what is the law
and public policy.11 Here, the Legislature has used the phrase
“out-of-home placement” in defining a statutory ground for
termination of parental rights. That phrase is not specifically
defined in the Nebraska Juvenile Code, but absent anything
to the contrary, we give statutory language its plain and ordi-
nary meaning.12
When a child is adjudicated pursuant to § 43-247(3)(a), as
is the case here,
the court may permit such juvenile to remain in his or
her own home subject to supervision or may make an
order committing the juvenile to (1) the care of some
suitable institution, (2) inpatient or outpatient treatment
at a mental health facility or mental health program, (3)
the care of some reputable citizen of good moral char-
acter, (4) the care of some association willing to receive
the juvenile embracing in its objects the purpose of car-
ing for or obtaining homes for such juveniles . . . (5)
the care of a suitable family, or (6) the care and custody
of [DHHS].13
Further,
[w]hen the court awards a juvenile to the care of [DHHS],
an association, or an individual in accordance with the
11 Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395
(2011); City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795
N.W.2d 256 (2011).
12 In re Interest of Spencer O., 277 Neb. 776, 765 N.W.2d 443 (2009); In re
Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).
13 Neb. Rev. Stat. § 43-284 (Reissue 2008).
IN Re INTeReST OF keNDRA M. eT AL. 	1031
Cite as 283 Neb. 1014

Nebraska Juvenile Code, the juvenile shall, unless oth-
erwise ordered, become a ward and be subject to the
guardianship of the department, association, or individual
to whose care he or she is committed.14
These children have been placed out of the parental home
since 2005, first in DHHS’ custody and then in the custody of
Teresa and Greg. There is no principled basis for concluding
that the first was an “out-of-home placement,” but the second
was not. Lisa’s agreement to the appointment of Teresa and
Greg as guardians did not change the nature of the placement,
which was outside of her home.
[10] We are also not persuaded by the argument that char-
acterizing the guardianship as an “out-of-home placement”
would somehow undermine the “temporary” nature of a guard-
ianship for a child adjudicated pursuant to § 43-247(3)(a).
In many such cases, any form of out-of-home placement is
originally intended as a temporary step toward reunification
of the family. but when reunification has not occurred after
the passage of time determined by the Legislature, the child’s
need for permanency may necessitate other measures, up to
and including termination of parental rights. And parental
rights cannot be terminated solely based on the duration of
the out-of-home placement, because it must also be shown
that the parent is unfit and that termination is in the best
interests of the child.15 The placement of a child outside the
home for 15 or more months of the most recent 22 months
under § 43-292(7) merely provides a guideline for what
would be a reasonable time for parents to rehabilitate them-
selves to a minimum level of fitness.16 The fact that a child
has been placed outside the home for 15 or more months
of the most recent 22 months does not demonstrate paren-
tal unfitness.17
14 Neb. Rev. Stat. § 43-285(1) (Cum. Supp. 2010).
15 See, § 43-292; In re Interest of Ryder J., supra note 4.
16 In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74
(2009); In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
17 Id.
1032 	283 NebRASkA RepORTS

[11] Only one statutory ground for termination need be
proved in order for parental rights to be terminated.18 because
we conclude that there is clear and convincing evidence that
all three juveniles have been in an out-of-home placement for
15 or more months of the most recent 22 months, we need
not discuss the other statutory grounds which the court found
to exist in this context, and we proceed to the issues of best
interests and fitness.19
best I nterests of chIldren
and parental fItness
[12-15] In addition to proving a statutory ground, the State
must show that termination is in the best interests of the
child.20 A parent’s right to raise his or her child is constitu-
tionally protected; so before a court may terminate parental
rights, the State must also show that the parent is unfit.21
There is a rebuttable presumption that the best interests of a
child are served by having a relationship with his or her par-
ent. based on the idea that fit parents act in the best interests
of their children, this presumption is overcome only when the
State has proved that the parent is unfit.22 The term “unfit-
ness” is not expressly used in § 43-292, but the concept is
generally encompassed by the fault and neglect subsections
of that statute, and also through a determination of the child’s
best interests.23 In discussing the constitutionally protected
relationship between a parent and a child, we have stated,
“‘parental unfitness means a personal deficiency or incapacity
which has prevented, or will probably prevent, performance
18 In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804
(2000); In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405
(2000).
19 See In re Interest of Michael B. et al., supra note 18.
20 See, In re Interest of Ryder J., supra note 4; In re Interest of Sir Messiah
T. et al., supra note 10.
21 In re Interest of Ryder J., supra note 4.
22 Id. See, also, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. ed.
2d 49 (2000); In re Interest of Xavier H., supra note 16.
23 In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).
IN Re INTeReST OF keNDRA M. eT AL. 	1033
Cite as 283 Neb. 1014

of a reasonable parental obligation in child rearing and which
has caused, or probably will result in, detriment to a child’s
well-being.’”24 The best interests analysis and the parental fit-
ness analysis are fact-intensive inquiries. And while both are
separate inquiries, each examines essentially the same under-
lying facts as the other.25
based upon her own testimony and that of Taylor, Lisa
argues that her life has stabilized to the point where she is
now able to care for the children who are the subject of this
case, in addition to her other three young children. but this
court is not prohibited from considering prior events when
determining whether to terminate parental rights,26 and despite
evidence of Lisa’s current stability, we cannot ignore what has
transpired during the parental relationship. While Lisa had
these children in her care, she exposed them to health haz-
ards and permitted them to live with a convicted sex offender
who abused more than one of them. And before the children
were placed in the guardianship, Lisa stole from a neighbor
in their presence and lived with men who had criminal back-
grounds. In the years DHHS was working with her, Lisa was
also unable to provide a stable home for the children, despite
receiving services designed to assist her in doing so.
While in recent years Lisa has been able to maintain a suit-
able residence and employment, this corresponds with the time
period in which she has been living with Mark. Meidlinger’s
expert opinion is particularly relevant in this regard. based
upon the personality disorder diagnosis, he opined that Lisa
was unstable in terms of self-concept and mood, was unpre-
dictable, and had difficulty in maintaining long-term, positive
functioning. He opined that the odds were high that Lisa would
be unable to maintain a stable relationship with an adult part-
ner, and when asked what would occur if Lisa were not in such
a relationship, he stated that the “best predictor . . . would be
her past behavior,” which included an instability with work
24 Uhing v. Uhing, 241 Neb. 368, 375, 488 N.W.2d 366, 372 (1992) (quoting
Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990)).
25 In re Interest of Ryder J., supra note 4.
26 See In re Interest of Hope L. et al., supra note 23.
1034 	283 NebRASkA RepORTS

and relationships and an inability to focus on the needs of her
children. Meidlinger further opined that Lisa’s most recent
period of stability was not predictive of her future stability
and that based upon a broader view of her life history, she was
“likely to have less stability in relationships; less stability in
her own emotional functioning and more difficulty [in] making
. . . good long-term decisions for herself. She is also impaired
from dealing with problems by her own desire to see every-
thing as being okay.” No expert testimony was offered to rebut
Meidlinger’s opinion.
We also place considerable weight on the testimony of
Melius, the children’s therapist, who stressed the children’s
need for stability. Melius testified that the children became
anxious at the thought of a change in their current placement
and that katrina feared that reunification would put her in con-
tact with those who had abused her in the past. Melius opined,
explicitly with respect to Matthew and katrina and implicitly
with respect to kendra, that termination of parental rights
would be in their best interests.
based upon our de novo review of the record, we find clear
and convincing evidence that Lisa’s personal deficiencies
have prevented her from performing her reasonable paren-
tal obligations to kendra, Matthew, and katrina in the past,
and would likely prevent her from doing so in the future.
Accordingly, the presumption of fitness has been rebutted.
We also find that it was shown by clear and convincing evi-
dence that termination of Lisa’s parental rights would be in
the children’s best interests. because we conclude that the
lower court did not err in terminating Lisa’s parental rights
to kendra, Matthew, and katrina, we need not address Lisa’s
contention that the court erred in denying her motion to ter-
minate the guardianship.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
county court, sitting as a juvenile court.
affIrMed.
IN Re INTeReST OF keNDRA M. eT AL. 	1035
Cite as 283 Neb. 1014