Background
Jaxson and Jayden F. are twin boys born in May 2017 to Brook F. This was not their first time in the child welfare system: the twins had previously been removed from Brook’s care in 2019 and spent 26 months in out-of-home placement before being reunified with her in February 2022. The second removal came in January 2024 after Brook was arrested and no caregiver was available in the home. DHHS had been receiving domestic violence intakes about Brook and her boyfriend, Kent H., since August 2023.
Following the second removal, DHHS identified Brook’s primary barriers to reunification as unstable housing, untreated mental health conditions, and illegal substance use. The case plan required Brook to maintain stable housing, address her mental health, maintain sobriety for six months, and refrain from substance use around the children. Despite extensive DHHS support—including a motel for temporary housing (which Brook had to leave after damaging the room), transportation offers, and a provider willing to meet her anywhere in Nebraska or Colorado—Brook made essentially no progress during the 18-month case. She provided DHHS with no fixed address for extended periods, moved between locations including living with Kent (despite his alleged domestic violence), stopped attending counseling, and had only one drug patch placed (in March 2025), the results of which were never collected because she did not show up to the appointment and failed to respond to five follow-up attempts. She never complied with urinalysis drug testing. Visitation was suspended in September 2024 for failure to produce negative drug tests, and Brook did not see the boys in person from March 2024 until virtual visits began in March 2025. Both boys told their therapist that Brook was “mean,” feared her, and did not want to see or live with her. The therapist testified that virtual visits were causing the boys psychological harm. The county court for Keith County terminated Brook’s parental rights in August 2025, and Brook appealed solely on the question of whether termination was in the children’s best interests.
The Court’s Holding
The Nebraska Court of Appeals affirmed, conducting its own de novo best-interests review and independently confirming the statutory basis under § 43-292(7). Brook did not contest that a statutory ground existed, but the court noted that the undisputed facts satisfied § 43-292(7): the amended petition for termination was filed in August 2025, by which time Jaxson and Jayden had been in out-of-home placement for approximately 18 continuous months since January 2024.
On best interests, the court found the evidence of unfitness overwhelming. Over 18 months, Brook never secured stable housing, never demonstrated sobriety (having engaged in no drug testing whatsoever), and stopped attending mental health counseling entirely without completing reinstatement paperwork. Her limited contact with the boys was harmful rather than beneficial: virtual visits revealed a pattern of Brook being “selfish,” “mean,” and emotionally volatile, including an incident where she raised her voice so aggressively that the visit was terminated, after which both boys said they did not want to see or talk to her again. Their therapist testified that the boys had no positive memories of Brook and that, in her professional judgment, it was “impossible for either boy to feel safe and comfortable in [Brook’s] care.”
The court emphasized the significance of the prior removal history. Jaxson and Jayden had already spent 26 months in foster care before reunification in 2022 failed within two years. Nebraska courts have consistently held that children cannot be suspended in foster care awaiting uncertain parental maturity; that principle applies with particular force when a parent has already been given a second chance through reunification and failed again. The court found clear and convincing evidence that Brook was unfit and that termination was in the boys’ best interests.
Key Takeaways
- A prior successful reunification does not protect a parent from termination if the child is subsequently removed and the parent again fails to address the underlying concerns; courts weigh prior out-of-home history when assessing whether the children have already waited long enough for permanency.
- Complete non-engagement with drug testing—zero urinalyses submitted, one patch placed with results never collected—is treated as a failure to address substance abuse concerns, even when the parent disputes using substances; DHHS cannot demonstrate sobriety on the parent’s behalf.
- When visitation itself is causing children psychological harm, including fear, emotional dysregulation, and refusal of contact, Nebraska courts will not require further visitation in the hope of repair; the children’s safety and stability take priority.
- In a § 43-292(7) case, appellate courts must be “particularly diligent” in reviewing best interests de novo; the mechanical operation of the 15-month rule heightens the scrutiny applied at the best-interests step, but evidence of no progress over 18 months satisfies that heightened standard.
Why It Matters
In re Interest of Jaxson F. & Jayden F. provides a clear illustration of how Nebraska courts treat reunification failures in second-removal cases. The opinion is a stark reminder that reunification is not a permanent safe harbor: a parent who was reunified once and then failed a second time is not entitled to a third open-ended rehabilitative opportunity when the children have now spent a total of more than three years in out-of-home care across two separate removals. Practitioners advising parents in second-removal cases should counsel their clients that the stakes are heightened from the outset and that swift, consistent, and demonstrable progress is essential.
The case also highlights how drug testing compliance—or its absence—drives the evidentiary record in termination proceedings. Brook’s failure to participate in testing left the record devoid of any evidence of sobriety. Even parents who believe they are sober must understand that their belief is not evidence; only documented testing creates the record DHHS needs to support reunification recommendations. DHHS made multiple accommodations, offering to meet Brook in multiple Nebraska towns or in Colorado, and Brook still refused. That pattern of refusal, combined with zero participation, made reunification recommendations impossible and termination legally supportable.