In re Interest of Ryder J.

I n re I nterest of ryder J., a chIld
under 18 years of age .
state of nebraska , appellee , v.
randal r., appellant.
809 N.W.2d 255
Filed February 17, 2012. 	No. S-11-482.
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. 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.
2. Criminal Law: Minors. Intentional child abuse that causes severe bodily inju-
ries, regardless whether the injuries result in permanent damage or disability,
qualifies as aggravated circumstances.
3. Criminal Law: Minors: Appeal and Error. In a case of intentional child abuse,
an appellate court determines whether aggravated circumstances exist on a case-
by-case basis.
4. Criminal Law: Minors. The list of aggravated circumstances in Neb. Rev. Stat.
§ 43-292(9) (Cum. Supp. 2010) is not exhaustive. Aggravated circumstances exist
when a child suffers severe, intentional physical abuse.
5. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Cum. Supp. 2010), once
the State shows that statutory grounds for termination of parental rights exist, the
State must then show that termination is in the best interests of the child.
6. 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.
7. 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.
8. Parental Rights. A court need not wait for a disaster to strike before taking pro-
tective steps in the interests of a minor child.
9. ____. 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.
10. ____. In a case involving termination of parental rights, it is proper to con-
sider a parent’s inability to perform his or her parental obligations because
of incarceration.
11. ____. Although incarceration alone cannot be the sole basis for terminating
parental rights, it is a factor to be considered.
Appeal from the County Court for Lincoln County: kent d.
turnbull, Judge. Affirmed.
318 	283 NeBRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Luke T. Deaver, of person Law office, for appellant.
Rebecca Harling, Lincoln County Attorney, and Jennifer
Wellan for appellee.
heavIcan, c.J., WrIght, connolly, stephan, MccorMack ,
and MIller-lerMan, JJ.
connolly, J.
Randal R. is the father of Ryder J. The State twice charged
Randal for abusing Crue J., Ryder’s half brother, but not
Randal’s child. Randal pled no contest both times. The State
moved to terminate Randal’s parental rights to Ryder, arguing
that the repeated abuse of Crue was grounds for termination.
Following trial, the county court, sitting as a juvenile court,
terminated Randal’s parental rights. Because sufficient statu-
tory grounds existed for the termination, and because the State
proved that Randal was an unfit parent and that termination
was in Ryder’s best interests, we affirm.
BACkGRoUND
basIs for MotIon to terMInate
parental rIghts
Ryder was born in November 2008. Randal is his father,
and Natasha J. is his mother. Natasha has another child, Crue,
from a prior relationship. Crue was born in May 2005. Randal
lived with Natasha, Crue, and Ryder at various times in 2008
and 2009.
In April 2008, Natasha took Crue to a local hospital with
significant physical injuries, which medical personnel deter-
mined were the result of nonaccidental trauma. In sum, Crue
had been physically abused. Crue sustained the injuries while
in the care and custody of Randal. Randal pled no contest to
attempted child abuse, a Class II misdemeanor, and received
probation. Following this incident, Randal ceased living with
Natasha and Crue.
But in early 2009, Randal moved back in with Natasha, Crue,
and Ryder. Randal and Natasha had gone to counseling, Crue
had received therapy, and at the time, Natasha did not believe
that Randal had hurt Crue. In october 2009, Crue was again
IN Re INTeReST oF RyDeR J. 	319
Cite as 283 Neb. 318

taken to the hospital with significant physical injuries, which
medical personnel determined were the result of nonacciden-
tal trauma. Crue sustained the injuries while in the care and
custody of Randal. Randal pled no contest to attempted child
abuse, a Class IV felony. A district court sentenced Randal to a
term of 12⁄3 to 4 years’ incarceration.
Because of these two incidents, the county attorney peti-
tioned the juvenile court to adjudicate Ryder as a child under
the Nebraska Juvenile Code. The county attorney then filed a
motion, later amended, to terminate Randal’s parental rights.
The motion alleged Randal had subjected “the juvenile or
another minor child to aggravated circumstances, including, but
not limited to[,] abandonment, torture, chronic abuse or sexual
abuse” under Neb. Rev. Stat. § 43-292(9) (Cum. Supp. 2010).
The motion also alleged Randal had “committed a felony
assault that resulted in serious bodily injury to the juvenile or
another minor child of the parent” under § 43-292(10).
the trIal
Much of the evidence at trial detailed the extent of Crue’s
injuries in 2008 and 2009. Michael Gallentine, M.D., a urol-
ogist, 	examined 	Crue 	following 	the April 	2008 	incident.
Gallentine testified that Crue “had a significant amount of
swelling and bruising, [and] some degree of some redness” in
his genital area. Gallentine testified that these types of injuries
could only have been caused by significant trauma, through the
“striking or grabbing, [or] twisting” of the genitals. He testi-
fied that such injuries can potentially cause chronic discomfort,
loss of a testicle, and fertility issues, although it appeared that
Crue would not suffer from such long-term effects. Gallentine
opined that Crue’s injuries were caused by physical abuse.
Gallentine also saw Crue following the october 2009 incident.
He observed that Crue had injuries similar to those incurred in
2008 and again concluded that Crue’s injuries were caused by
physical abuse.
kathy Lopez, M.D., a pediatrician, also testified regard-
ing the extent of Crue’s injuries. She explained that Crue was
admitted to the hospital for 4 days following the April 2008
incident. In addition to the injuries to his genital area, Crue
320 	283 NeBRASkA RepoRTS

had significant bruising to his jaw and hemorrhages in both
eyes. Lopez opined that these injuries indicated that Crue
had been strangled. Lopez explained that the strangulation
could have caused permanent disability or death. Lopez opined
that Crue’s injuries were caused by nonaccidental trauma.
Lopez also saw Crue following the october 2009 incident. She
explained that the injuries were “[v]ery similar” to those suf-
fered in 2008 and opined that Crue’s injuries were again the
result of physical abuse.
Lee 	kimzey, 	ph.D., 	a 	clinical 	psychologist, 	diagnosed
Randal with dependent personality disorder. He testified that
the only treatment for the disorder was long-term therapy. From
his evaluation of Randal, he concluded that despite Randal’s
desire to parent Ryder, he was “‘currently ill-equipped to
manage the child and frustrations inherent in parenting and
the risk [for] harm to Ryder, if left unsupervised, exceed[ed]
a reasonable threshold of safety.’” He was also concerned
with Randal’s apparent lack of remorse for Crue’s injuries and
his failure to accept responsibility for causing those injuries.
And kimzey explained that the inherent frustrations of child
rearing, combined with Randal’s impulsiveness and lack of
concern for others, created an unreasonable risk of danger
for Crue, or any child of similar age. He testified, however,
that with therapy and supervised visits, he believed the risk to
Ryder would be minimal.
the JuvenIle court’s order
The court terminated Randal’s parental rights to Ryder.
Under § 43-292(9), the court found, by clear and convinc-
ing evidence, that Randal had subjected another minor child,
Crue, to aggravated circumstances “including torture and
chronic abuse.” The court found that grounds for termination
existed under § 43-292(10) because Randal caused serious
bodily injury to Crue. The court rejected Randal’s argu-
ment that § 43-292(10) did not apply because Randal’s was
not Crue’s parent. The court then found that termination of
Randal’s parental rights was in Ryder’s best interests. The
court emphasized Randal’s impulsive behavior, his inability to
cope with the stress of raising a child, his need for extensive
IN Re INTeReST oF RyDeR J. 	321
Cite as 283 Neb. 318

psychotherapy, and kimzey’s belief that Ryder would be
unsafe if left alone with Randal. Furthermore, the court deter-
mined that Randal was an unfit parent. The court emphasized
Randal’s extremely violent reaction to the normal stress of
raising a child, his refusal to acknowledge his behavior, and
the likelihood that Randal would repeat this type of behavior.
The court terminated Randal’s parental rights to Ryder.
ASSIGNMeNTS oF eRRoR
Randal assigns, restated, that the court erred in:
(1) finding that Randal had subjected Crue to “aggravated
circumstances” under § 43-292(9);
(2) violating the ex post Facto Clauses of the Nebraska and
U.S. Constitutions when it terminated Randal’s parental rights
based in part upon the 2008 abuse, which occurred before the
Legislature amended § 43-292(9);
(3) determining that Randal was Crue’s “parent” for pur-
poses of § 43-292(10);
(4) finding that the termination of Randal’s parental rights
was in Ryder’s best interests; and
(5) finding that Randal was an unfit parent.
STANDARD oF ReVIeW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.1 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.2
ANALySIS
“aggravated cIrcuMstances”
under § 43-292(9)
[2] Randal argues that Crue’s injuries do not rise to the
level of “aggravated circumstances” under § 43-292(9) because
Crue’s injuries will likely have no long-term effects. But
1 In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
2 In re Interest of Jac’Quez N., 266 Neb. 782, 669 N.W.2d 429 (2003).
322 	283 NeBRASkA RepoRTS

intentional child abuse that causes severe bodily injuries,
regardless whether the injuries result in permanent damage or
disability, qualifies as aggravated circumstances.
Section 43-292 states, in relevant part:
The court may terminate all parental rights between
the parents or the mother of a juvenile born out of wed-
lock and such juvenile when the court finds such action
to be in the best interests of the juvenile and it appears
by the evidence that one or more of the following condi-
tions exist:
. . . .
(9) The parent of the juvenile has subjected the juve-
nile or another minor child to aggravated circumstances,
including, 	but 	not 	limited 	to, 	abandonment, 	torture,
chronic abuse, or sexual abuse.
The court terminated Randal’s parental rights to Ryder,
in part because Randal had subjected Crue, “another minor
child,” to aggravated circumstances under § 43-292(9). The
court based its decision on both the 2008 and 2009 incidents
of abuse. But the relevant language of § 43-292(9), “or another
minor child,” was added in 2009.3 Because the 2008 abuse
occurred before that language was added, Randal argues that
when the court considered the 2008 abuse, it violated the ex
post Facto Clauses of the Nebraska and U.S. Constitutions. But
under our de novo review of the record, we conclude that the
2009 abuse, which occurred after the Legislature amended the
statute, is sufficient to conclude that Randal subjected Crue to
aggravated circumstances. So we do not consider the ex post
Facto Clause issue.
[3] We determine whether aggravated circumstances exist on
a case-by-case basis.4 Although the Legislature has not defined
in the juvenile code the phrase “aggravated circumstances,” this
is not the first time we have addressed its meaning. For exam-
ple, in In re Interest of Jac’Quez N.,5 we cited with approval
3 See 2009 Neb. Laws, L.B. 517, § 2. Compare § 43-292(9) (Reissue 2008)
with § 43-292(9) (Cum. Supp. 2010).
4 See In re Interest of Jac’Quez N., supra note 2.
5 Id.
IN Re INTeReST oF RyDeR J. 	323
Cite as 283 Neb. 318

the New Jersey Superior Court, stating that “‘where the cir-
cumstances created by the parent’s conduct create an unaccept-
ably high risk to the health, safety and welfare of the child,
they are “aggravated” . . . .’”6 We then concluded that aggra-
vated circumstances existed where the parent delayed seek-
ing medical attention for 2 days when the child had suffered
obvious, serious physical injuries.7 In In re Interest of Hope L.
et al.,8 we found that aggravated circumstances existed where
the parents starved two of their children and, by false medical
reports, obtained unnecessary medical operations for three of
their children. And most recently, in In re Interest of Jamyia
M.,9 we again concluded that aggravated circumstances existed
where the child suffered severe physical injuries through inten-
tional abuse.10
[4] Here, the juvenile court determined that Randal sub-
jected Crue to torture and chronic abuse, which were “aggra-
vated circumstances” under § 43-292(9). We reiterate that, in
contrast to the juvenile court, we are looking only at the 2009
abuse. And the 2009 abuse, by itself, is not chronic abuse,
because it was a single event. Furthermore, we are hesitant
to term the abuse, although severe, as torture on this record.
The examples provided under § 43-292(9), however, are not
an exhaustive list,11 and we have determined that aggravated
circumstances exist when a child suffers severe, intentional
physical abuse.12 Here, the State has met that standard. Crue’s
injuries in 2009 were severe—Gallentine opined that Crue
had bruising, swelling, and abrasion to his genitals and the
surrounding area. Both Gallentine and Lopez explained that
Crue had petechial hemorrhaging across his face, significant
6 Id. at 791, 669 N.W.2d at 436, quoting New Jersey Div. v. A.R.G., 361 N.J.
Super. 46, 824 A.2d 213 (2003).
7 See id.
8 In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).
9 In re Interest of Jamyia M., supra note 1.
10 See id.
11 See In re Interest of Jac’Quez N., supra note 2.
12 See In re Interest of Jamyia M., supra note 1.
324 	283 NeBRASkA RepoRTS

bruises on several areas of his body, and a hemorrhage in his
right eye. Lopez concluded that Crue had been strangled. Both
Gallentine and Lopez opined that Crue had been intention-
ally, physically abused. Thus, we conclude that Randal sub-
jected Crue to aggravated circumstances within the meaning
of § 43-292(9).
But Randal asserts that our previous cases interpreting the
meaning of aggravated circumstances have all involved chil-
dren who were permanently injured. Randal argues that the
abuse of Crue does not constitute aggravated circumstances
because Crue suffered no permanent injury or disability. We
disagree. We first note that while the extent of a child’s injury
is relevant to determining whether aggravated circumstances
exist, we have never stated that aggravated circumstances
exist only when permanent injury is inflicted. on the contrary,
in In re Interest of Jamyia M., we stated that aggravated cir-
cumstances existed where the record “support[ed] the finding
that [the child was subjected] to severe, intentional physi-
cal abuse.”13
Furthermore, 	Randal’s 	approach 	would 	benefit 	parents
whose abusive conduct, by dumb luck, did not permanently
harm their children. We are unwilling to place a child in a
position to be harmed again (or for the first time) simply
because the child had the good fortune to escape permanent
disability in the first instance. This case is a good example.
Crue suffered severe physical injuries in 2009, and Lopez
explained that his injuries could have resulted in death, loss
of vision, or permanent disability and disfigurement. Crue’s
fortunate avoidance of long-term, debilitating effects from his
injuries does not lessen the terrible nature of the abuse. The
lack of permanent injury or disability to Crue is a distinction
without a difference.
Because statutory grounds for the termination of Randal’s
parental rights to Ryder exist under § 43-292(9), we need not
address Randal’s claim that the court erred in concluding that
grounds existed under § 43-292(10).14 Instead, we move to the
13 Id. at 975, 800 N.W.2d at 268.
14 See, e.g., In re Interest of Jac’Quez N., supra note 2.
IN Re INTeReST oF RyDeR J. 	325
Cite as 283 Neb. 318

next phase of the analysis and determine whether Randal was
an unfit parent and whether termination of Randal’s parental
rights was in the best interests of Ryder.
parental fItness and best I nterests
of the chIld
Randal argues that his abuse of Crue, while terrible, is of
limited significance in determining whether the court should
terminate his parental rights to Ryder. Randal asserts that the
evidence shows that he and Ryder have a strong father-son rela-
tionship and that less drastic remedies exist that would allow
that relationship to continue without endangering Ryder’s well-
being. In short, Randal argues that the State failed to prove
both that he was an unfit parent and that termination was in
Ryder’s best interests. Again, we disagree.
[5-7] Under § 43-292, once the State shows that statutory
grounds for termination of parental rights exist, the State must
then show that termination is in the best interests of the child.
But that is not all. 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.15 And 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.16 obviously,
both the best interests analysis and the parental fitness analysis
are fact-intensive inquiries. And while both are separate inquir-
ies, each examines essentially the same underlying facts as
the other.
It is true that Randal’s friends and family members testi-
fied on his behalf and that their testimony indicated Randal
and Ryder had a normal father-son relationship. Further, their
testimony showed that they believed Randal to be a capa-
ble parent. But on cross-examination, several of those same
15 See In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
16 Id. at 349, 740 N.W.2d at 25, quoting Troxel v. Granville, 530 U.S. 57, 120
S. Ct. 2054, 147 L. ed. 2d 49 (2000).
326 	283 NeBRASkA RepoRTS

witnesses testified that they did not believe that Randal had
twice abused Crue—acts to which Randal had pled no contest
and been found guilty. We give no weight to their testimony.
As to Randal’s remaining witnesses, we do not doubt their
sincerity, but their opinions are significantly outweighed by
the testimony regarding Crue’s abuse, the circumstances sur-
rounding it, and kimzey’s clinical opinions.
[8] We recognize that Randal has never abused Ryder. But
there is no dispute that Randal seriously abused Crue. And in
our view, the abuse of any child by an adult—regardless of
whether it is the adult’s own child or the child of another—calls
that adult’s ability to parent into serious question. This is par-
ticularly true here. The record shows that the 2009 abuse was
preceded by a relatively ordinary child-rearing event: Crue, a
4-year-old at the time, wet the bed and tried to hide his soiled
pajamas. The abuse, from this record, was apparently Randal’s
way of dealing with the bed-wetting. obviously, physical abuse
is not an appropriate response to the stress of parenting. We
note that the types of events that led to Crue’s abuse, such
as bed-wetting, had not yet become an issue with Ryder—so
Randal had not experienced the same situations with Ryder
that apparently prompted the abuse of Crue. So, the fact that
Randal has not yet abused Ryder is inconsequential. We need
not wait for a disaster to strike before taking protective steps in
the interests of a minor child.17
We also recognize that Crue is not related to Randal and that
Ryder is Randal’s biological child. While kimzey acknowl-
edged that parents often treat their biological children differ-
ently from their unrelated children, he concluded that if any
child about Crue’s age (3 to 5 years old) were left unsupervised
with Randal, that child would be exposed to an unreasonable
risk of harm. kimzey explained that the stress of raising any
child, and not just Crue, could potentially result in Randal’s
“lashing out at the child.” essentially, kimzey opined that
Randal could not appropriately deal with the stress of raising a
child independently; when confronted with that stress, Randal
could and did respond with violence.
17 See In re Interest of S.L.P., 230 Neb. 635, 432 N.W.2d 826 (1988).
IN Re INTeReST oF RyDeR J. 	327
Cite as 283 Neb. 318

[9] Moreover, we have stated that “where a parent is unable
or unwilling to rehabilitate himself or herself within a reason-
able time, the best interests of the child require termination of
the parental rights.”18 kimzey diagnosed Randal with depen-
dent personality disorder. In short, the diagnosis indicated
that Randal could not take care of Ryder without supervision.
kimzey testified that no medication is available to treat this
type of disorder and that the only remedy is long-term therapy
for an indeterminate time. As such, this weighs in favor of ter-
mination of Randal’s parental rights.
[10,11] Lastly, we note that Randal is currently incarcerated.
We have stated that “in a case involving termination of parental
rights, it is proper to consider a parent’s inability to perform
his or her parental obligations because of incarceration.”19 If a
parent is in jail, he or she necessarily has a more limited role
in raising a child. So, although incarceration alone cannot be
the sole basis for terminating parental rights, it is a factor to be
considered.20 Here, a district court sentenced Randal to a term
of 12⁄3 to 4 years’ incarceration, after he violated his proba-
tion and pled no contest to attempted child abuse, a Class IV
felony. This also weighs in favor of termination of Randal’s
parental rights.
Taken together, these facts show that Randal is not a fit par-
ent for Ryder and that termination of his parental rights is in
Ryder’s best interests. We emphasize the severe nature of the
abuse inflicted upon Crue and that the abuse was apparently in
response to the normal stress of raising a child. Furthermore,
kimzey testified that the risk to Ryder, if left unsupervised
with Randal, was unreasonable. The court did not err in termi-
nating Randal’s parental rights to Ryder.
CoNCLUSIoN
In our de novo review of the record, we conclude that suf-
ficient statutory grounds existed for the court to terminate
18 In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 56, 638 N.W.2d
510, 520 (2002).
19 Id. at 57, 638 N.W.2d at 521.
20 See id.
328 	283 NeBRASkA RepoRTS

Randal’s parental rights to Ryder. We also conclude that Randal
is an unfit parent and that terminating Randal’s parental rights
to Ryder was in Ryder’s best interests. We affirm the judgment
of the juvenile court.
affIrMed.
IN Re INTeReST oF RyDeR J. 	329
Cite as 283 Neb. 318