In re Interest of Jaydon W. & Ethan W. , 909 N.W.2d 385 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/20/2018 08:13 AM CST
- 562 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
In re I nterest of Jaydon W. & Ethan W.,
children under 18 years of age.
State of Nebraska, appellee,
v. M athew W., appellant.
___ N.W.2d ___
Filed February 20, 2018. Nos. A-17-497, A-17-498.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error.
Juvenile court proceedings are special proceedings, and an order in a
juvenile special proceeding is final and appealable if it affects a parent’s
substantial right to raise his or her child.
5. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
6. Juvenile Courts: Parental Rights: Parent and Child: Time: Final
Orders. Whether a substantial right of a parent has been affected by an
order in juvenile court litigation is dependent upon both the object of the
order and the length of time over which the parent’s relationship with
the juvenile may reasonably be expected to be disturbed.
7. Juvenile Courts: Judgments: Parental Rights. A review order in a
juvenile case does not affect a parent’s substantial right if the court
adopts a case plan or permanency plan that is almost identical to the
plan that the court adopted in a previous disposition or review order.
- 563 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
8. Juvenile Courts: Judgments: Appeal and Error. A dispositional order
which merely continues a previous determination is not an appeal-
able order.
9. Child Custody: Visitation: Final Orders: Appeal and Error. Orders
which temporarily suspend a parent’s custody and visitation rights do
not affect a substantial right and are therefore not appealable.
10. Parental Rights. The right of parents to maintain custody of their child
is a natural right, subject only to the paramount interest which the public
has in the protection of the rights of the child.
11. Due Process. The concept of due process embodies the notion of funda-
mental fairness and defies precise definition.
12. Parental Rights: Due Process: Appeal and Error. In deciding due
proc­ess requirements in a particular case, an appellate court must
weigh the interest of the parent, the interest of the State, and the risk
of erroneous decision given the procedures in use. Due process is flex-
ible and calls for such procedural protections as the particular situa-
tion demands.
13. Child Custody: Parental Rights. Under the parental preference princi-
ple, a parent’s natural right to the custody of his or her child trumps the
interests of strangers, including the State, to the parent-child relationship
and the preferences of the child.
14. Constitutional Law: Public Policy: Child Custody: Parental Rights.
Unless it has been affirmatively shown that a biological or adoptive
parent is unfit or has forfeited his or her right to custody, the U.S.
Constitution and sound public policy protect a parent’s right to custody
of his or her child.
15. Constitutional Law: Parental Rights: Presumptions. Absent circum-
stances which justify terminating a parent’s constitutionally protected
right to care for his or her child, due regard for the right requires that
a biological or adoptive parent be presumptively regarded as the proper
guardian for his or her child.
16. Juvenile Courts: Parental Rights. The parental preference doctrine is
applicable even to an adjudicated child.
17. Parental Rights: Proof. Forfeiting the right to custody under the
parental preference doctrine must be proved by clear and convinc-
ing evidence.
18. Parental Rights. Parental rights may be forfeited by a substantial, con-
tinuous, and repeated neglect of a child and a failure to discharge the
duties of parental care and protection.
19. Parental Rights: Proof. Substantial, continuous, and repeated neglect
of a child may be established by the complete indifference of a parent
for a child’s welfare over a long period of time.
- 564 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
20. Child Custody: Parental Rights: Proof. The initial burden of prov-
ing parental unfitness or forfeiture of a parent’s right to custody is on
the State.
21. Constitutional Law: Parental Rights. Whether termination of parental
rights is in a child’s best interests is not simply a determination that
one environment or set of circumstances is superior to another, but it
is instead subject to the overriding recognition that the relationship
between parent and child is constitutionally protected.
22. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a child are served by reuniting the child
with his or her parent that is overcome only when the parent has been
proved unfit or there has been a forfeiture.
23. Child Custody: Parental Rights. While the best interests of the child
remain the lodestar of child custody disputes, a parent’s superior right to
custody must be given its due regard, and absent its negation, a parent
retains the right to custody over his or her child.
24. ____: ____. A court may not deprive a parent of the custody of a child
merely because the court reasonably believes that some other person
could better provide for the child.
25. Juvenile Courts: Minors. The foremost purpose and objective of the
Nebraska Juvenile Code is to promote and protect the juvenile’s best
interests, and the juvenile code must be construed to assure the rights of
all juveniles to care and protection.
Appeal from the County Court for Platte County: Frank J.
Skorupa, Judge. Reversed and remanded with directions.
Susanne M. Dempsey-Cook for appellant.
Breanna Anderson, Deputy Platte County Attorney, for
appellee.
Eugene G. Schumacher, of Sipple, Hansen, Emerson,
Schumacher & Klutman, guardian ad litem.
Pirtle, R iedmann, and A rterburn, Judges.
R iedmann, Judge.
INTRODUCTION
Mathew W. appeals the orders of the county court for Platte
County, sitting as a juvenile court, which denied his motion
for custody of his minor children who had been adjudicated
- 565 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013) as to their
mother. Mathew argues that the court erred in concluding that
he had forfeited his right to custody. We agree, and therefore,
we reverse the order of the juvenile court and remand the
cause with directions consistent with this opinion.
BACKGROUND
Mathew is the father of the two children at issue here: Jaydon
W., born in July 2008, and Ethan W., born in September 2009.
Mathew and the children’s mother, Kylee M., were married in
2000 and divorced in 2007; however, they attempted to copar-
ent the boys until Ethan was around 18 months old. Mathew
remained in Columbus, Nebraska, where Kylee and the boys
have continuously resided, until 2012 or 2013, describing him-
self as the “primary parent” of the children during that time. In
June 2013, Kylee obtained a protection order which prohibited
Mathew from having contact with her or the boys. Because
of the protection order, Mathew moved to Georgia for several
months and stopped paying child support during that time.
Once the order expired, around June 2014, Mathew returned to
Nebraska and resided in Omaha.
Jaydon and Ethan were removed from Kylee’s care in August
2013 and adjudicated under § 43-247(3)(a) in November. They
were placed in a foster home at that time. According to
Mathew, at some point after August, he became aware that
the children were in the custody of the State and attempted to
contact the State on numerous occasions, but he was apparently
unsuccessful, and as he noted, he was unable to have contact
with the children until June 2014 due to the protection order.
Between February 2015 and February 2016, however, Kylee
would try to talk with Mathew at least four or five times per
week and would take the children to visit him at his home in
Omaha at least twice per month when they would all spend the
night at his house.
On August 31, 2015, Jaydon and Ethan were placed back
in Kylee’s home, but they were removed again on October 15
due to allegations of physical abuse by Kylee’s husband. When
- 566 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
Mathew learned that the children had been removed from
Kylee’s care again, he called the Department of Health and
Human Services (DHHS) and asked to become involved in the
case. Beginning that month, Mathew was permitted supervised
visits with the children twice per week, traveling from Omaha
to Columbus for a weekday visit and having the boys visit his
home on Saturdays.
In January 2016, Mathew filed a motion for custody in
which he requested that the court issue an order placing cus-
tody of the children with him. The State objected to the motion
because Mathew had just recently become involved in the case
and because placing the children with Mathew would require
another move for the children. The current and former DHHS
caseworkers testified at the hearing on the motion that they
each believed that a longer transition period was preferable to
allow the children to rebuild their relationship with Mathew
before granting him custody of the boys. Kylee testified that
she did not object to Mathew’s motion and that despite hav-
ing obtained protection orders against Mathew in the past, she
opined that the children would not be in danger if they lived
with him. After the hearing, the juvenile court entered an order
denying Mathew’s motion.
Thereafter, Mathew was allowed overnight visits on the
weekends in addition to his weekday visits. During that time
period, the boys were also having separate visits with Kylee
twice per week. Unfortunately, both boys began displaying
significantly increased behaviors during that time, so in May
2016, the court suspended all visitation with both parents.
Psychological evaluations were then completed on Kylee,
Mathew, Jaydon, and Ethan. Jaydon’s evaluation recommended
“Parent-Child Interactive Therapy” (PCIT) for him with Kylee
and separately with Mathew. Because the case plan goal
remained reunification with Kylee, DHHS elected to focus on
her and initially arranged PCIT for just her and Jaydon. Jaydon
began acting out, however, and therapy was placed on hold
pending Kylee’s evaluation.
- 567 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
Mathew’s psychological evaluation and parenting risk
assessment was completed over the course of several days in
September and October 2016 with a psychologist. The psy-
chologist diagnosed Mathew with adult attention deficit hyper-
activity disorder, and he found that Mathew showed “signifi-
cant defensiveness” and “was guarded in any personal wrong
doings involving his children” and displayed “some antiso-
cial, narcissistic, and turbulent” personality traits. However,
Mathew was not diagnosed with a personality disorder, and the
psychologist was supportive of PCIT for Mathew and the chil-
dren and recommended that Mathew be “brought up to speed”
on the children’s individual needs.
In April 2017, Mathew filed a second motion for custody of
the children. By that time, Mathew had moved to Columbus
in order to be closer to the children, had his own residence,
and was employed full time. He had resumed paying child
support and was attempting to “catch up” on the arrear-
age. DHHS continued to object to placing the children with
Mathew, claiming that allowing the boys to remain in their
foster home would be in their best interests. The caseworker
testified at the hearing that the boys’ behaviors immediately
and significantly improved after visitation with both parents
was suspended in May 2016 and that although there was a
slight regression by Jaydon in November or December when
PCIT with Kylee began, both boys exhibited much better
behavior during the 2016-17 school year than they had in the
spring of 2016.
In a subsequent order, the juvenile court denied Mathew’s
motion for custody. The court noted that visitation had been
suspended in May 2016 because of the children’s behavior
and that the cause of the behavioral issues had not yet been
resolved or adequately addressed. Thus, the court instructed
DHHS “to immediately and as quickly as possible address
those matters by way of [any necessary] assessments.” Pending
those assessments, Mathew’s motion for custody was denied.
Mathew timely appeals to this court.
- 568 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
ASSIGNMENT OF ERROR
Mathew assigns that the juvenile court violated his due
process rights and erred in denying his motion for custody of
the children.
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. In re Interest of Sloane O., 291 Neb.
892, 870 N.W.2d 110 (2015).
ANALYSIS
Jurisdiction.
Pursuant to this court’s request, the parties’ briefs addressed
the issue of whether the juvenile court’s April 2017 order deny-
ing Mathew’s motion for custody was a final, appealable order.
The State and the guardian ad litem contend that the court’s
order did not affect a substantial right and was a temporary
order, and, as such, it was not a final, appealable order and this
court lacks jurisdiction over this appeal. Conversely, Mathew
contends that the order does affect a substantial right and that
therefore, it is final and appealable.
[2-4] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over the
matter before it. In re Interest of Octavio B. et al., 290 Neb.
589, 861 N.W.2d 415 (2015). For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken. Id. Juvenile court
proceedings are special proceedings, and an order in a juvenile
special proceeding is final and appealable if it affects a par-
ent’s substantial right to raise his or her child. See id. Thus,
if the juvenile court’s order denying Mathew’s motion for
custody of the children affected his substantial right to raise
Jaydon and Ethan, the order was final and appealable. But if
the order did not affect a substantial right, we lack jurisdiction
and must dismiss the appeal.
- 569 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
[5-8] A substantial right is an essential legal right, not a
mere technical right. In re Interest of Octavio B. et al., supra.
Whether a substantial right of a parent has been affected by an
order in juvenile court litigation is dependent upon both the
object of the order and the length of time over which the par-
ent’s relationship with the juvenile may reasonably be expected
to be disturbed. Id. A review order does not affect a parent’s
substantial right if the court adopts a case plan or permanency
plan that is almost identical to the plan that the court adopted
in a previous disposition or review order. Id. Thus, a disposi-
tional order which merely continues a previous determination
is not an appealable order. Id.
The question here is whether the denial of Mathew’s April
2017 motion was merely a continuation of the denial of his
January 2016 motion. We conclude it was not. At the time
Mathew first moved for custody of the children, he had just
recently become part of the case and begun formal visitation
with the children. In denying the motion, the court noted that
Mathew waited more than 2 years before participating in the
case. In addition, the court observed that placing the children
with Mathew would entail removing the children from their
community and locating new health care providers, while the
permanency plan remained reunification with Kylee who con-
tinued to reside in Columbus.
At the time Mathew filed his second motion, however, he
had moved to Columbus and had been participating in the case
for more than 2 years. By that time, he had been permitted
visitation, including overnights, and had completed a psycho-
logical evaluation and parenting risk assessment, which sup-
ported his participation in PCIT with the children. As a result,
the juvenile court had different factors to consider when
assessing Mathew’s second motion, and some of the concerns
expressed in the order denying Mathew’s first motion had
been alleviated by April 2017, namely, Mathew had moved to
the children’s community and had gradually been transitioning
to playing a larger role in their lives. Therefore, we conclude
- 570 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
that the order from which Mathew has appealed was not a
mere continuation of a prior order.
The State additionally asserts that this court lacks jurisdic-
tion over the appeal because the order from which the appeal
was taken was “temporary in nature.” Brief for appellee at 12.
We disagree.
[9] Whether a substantial right of a parent has been affected
by an order in juvenile court litigation is dependent upon
both the object of the order and the length of time over which
the parent’s relationship with the juvenile may reasonably be
expected to be disturbed. In re Interest of Danaisha W. et al.,
287 Neb. 27, 840 N.W.2d 533 (2013). Orders which tempo-
rarily suspend a parent’s custody and visitation rights do not
affect a substantial right and are therefore not appealable. Id.
In In re Interest of Danaisha W. et al., supra, the Nebraska
Supreme Court held that an order imposing restrictions on a
parent’s visitation rights was temporary in nature and there-
fore did not affect a substantial right so as to be appealable
when it was in effect only until the scheduled hearing on a
motion to terminate parental rights, which was to be held
approximately 5 weeks later.
To the contrary, in In re Interest of Cassandra B. & Moira
B., 290 Neb. 619, 861 N.W.2d 398 (2015), the juvenile court’s
order prohibited a parent from homeschooling one of the
children, pending further order of the court. On appeal, the
Supreme Court noted that the juvenile court’s order gave no
indication that the court would revisit the issue prior to the
next review hearing which was scheduled for approximately
6 months in the future. The Supreme Court also observed that
because juvenile courts are statutorily required to review the
cases of adjudicated juveniles every 6 months, virtually no
order would have a longer duration than that. The court there-
fore concluded that the order was not temporary in nature and
was a final, appealable order.
We conclude that the instant case is more akin to In re
Interest of Cassandra B. & Moira B., supra, than to In re
- 571 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
Interest of Danaisha W. et al., supra. Here, the juvenile court’s
order denied Mathew’s motion for custody of the children
pending assessments to determine the cause of their behavioral
issues. The order instructed DHHS to complete the necessary
assessments, and there was no indication of the timeframe by
which the assessments would be completed. This is particularly
relevant given that visitation had been suspended since May
2016, and by April 2017, a cause had yet to be determined and
visitation remained suspended. Thus, it does not appear that
the cause of the children’s behaviors is an issue that can be
quickly determined and resolved.
Additionally, there was no indication that Mathew had any
control over when the assessments could be completed or
had the power to gain custody of the children before the next
scheduled review hearing. See In re Interest of Nathaniel P.,
22 Neb. Ct. App. 46, 846 N.W.2d 681 (2014) (order suspending
mother’s right to direct child’s education was temporary in
nature because mother had power to regain her rights before
next scheduled review hearing). We therefore conclude that
the denial of Mathew’s motion for custody was of sufficient
duration as to render the order final and appealable. As a
result, this court has jurisdiction to consider the merits of
Mathew’s argument.
Motion for Custody.
Mathew argues that the juvenile court violated his due proc­
ess rights and erred when it denied his motion for custody of
the children without sufficient evidence proving that he had
forfeited his right to custody. We agree.
[10-12] The right of parents to maintain custody of their
child is a natural right, subject only to the paramount inter-
est which the public has in the protection of the rights of the
child. In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d
110 (2015). The concept of due process embodies the notion
of fundamental fairness and defies precise definition. Id. In
deciding due process requirements in a particular case, we
- 572 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
must weigh the interest of the parent, the interest of the State,
and the risk of erroneous decision given the procedures in use.
Id. Due process is flexible and calls for such procedural protec-
tions as the particular situation demands. Id.
[13-16] Under the parental preference principle, a parent’s
natural right to the custody of his or her child trumps the
interests of strangers, including the State, to the parent-child
relationship and the preferences of the child. Id. Therefore,
unless it has been affirmatively shown that a biological or
adoptive parent is unfit or has forfeited his or her right to
custody, the U.S. Constitution and sound public policy protect
a parent’s right to custody of his or her child. Id. Absent cir-
cumstances which justify terminating a parent’s constitution-
ally protected right to care for his or her child, due regard
for the right requires that a biological or adoptive parent be
presumptively regarded as the proper guardian for his or her
child. Id. The doctrine is applicable even to an adjudicated
child. Id.
[17] There are no allegations in the present case that Mathew
is unfit to have custody of the children. Therefore, the question
before us is whether the State proved by clear and convincing
evidence that Mathew forfeited his right to custody. See In re
Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d
174 (2011) (proof of parental unfitness or forfeiture of right to
custody requires proof by clear and convincing evidence). The
juvenile court’s conclusion in April 2017 that there had been
a forfeiture was based primarily on the time period of August
9, 2013 (the filing of the petition against Kylee), to December
2015 (the date Mathew’s visitation was ordered).
[18-20] Generally, parental rights may be forfeited by a sub-
stantial, continuous, and repeated neglect of a child and a fail-
ure to discharge the duties of parental care and protection. In
re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461
(2005). Substantial, continuous, and repeated neglect of a child
may be established by the complete indifference of a parent for
a child’s welfare over a long period of time. See id. The initial
 - 573 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
burden of proving parental unfitness or forfeiture of a parent’s
right to custody is on the State. See In re Interest of Lilly S. &
Vincent S., 298 Neb. 306, 903 N.W.2d 651 (2017).
In the instant case, we note that the State argues that the
juvenile court properly denied Mathew’s motion for custody,
because refusing to move the children from their current foster
home into Mathew’s home was in the children’s best inter-
ests—they have lived in their foster home for nearly 4 years,
are bonded to their foster parents, and have “consistency and
stability” there. Brief for appellee at 17. However, this type of
analysis does not come into play until after there has been a
finding of parental unfitness or forfeiture. See In re Interest of
Lakota Z. & Jacob H., supra.
[21,22] Although the name of the best interests of the child
standard may invite a different intuitive understanding, the
standard does not require simply that a determination be made
that one environment or set of circumstances is superior to
another. Id. Rather, the best interests standard is subject to
the overriding recognition that the relationship between parent
and child is constitutionally protected. Id. There is a rebut-
table presumption that the best interests of a child are served
by reuniting the child with his or her parent. Id. Based on the
idea that fit parents act in the best interests of their children,
this presumption is overcome only when the parent has been
proved unfit or there has been a forfeiture. See id.
[23,24] Additionally, while the best interests of the child
remain the lodestar of child custody disputes, a parent’s supe-
rior right to custody must be given its due regard, and absent
its negation, a parent retains the right to custody over his or her
child. In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d
238 (2004). In other words, a parent retains the right to custody
unless it is proved that the parent is unfit or has forfeited his
or her right to custody. A court may not deprive a parent of the
custody of a child merely because the court reasonably believes
that some other person could better provide for the child. In
re Interest of Lilly S. & Vincent S., supra. Stated another way,
- 574 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
“the fact that the State considers certain prospective adop-
tive parents ‘better’ [does not] overcome the constitutionally
required presumption that reuniting with [a parent] is best.” In
re Interest of Xavier H., 274 Neb. 331, 350, 740 N.W.2d 13, 26
(2007). The court has never deprived a parent of the custody of
a child merely because on financial or other grounds a stranger
might better provide. In re Interest of Xavier H., supra.
Thus, in the instant case, the initial question is not whether
the children’s best interests are served by remaining in their
current foster home because it would be “‘better’” for them,
but, rather, whether the presumption that their best interests are
served by reuniting with Mathew has been rebutted by clear
and convincing evidence that Mathew is unfit or has forfeited
his right to custody. See id. at 350, 740 N.W.2d at 26. As noted
above, there are no allegations that Mathew is unfit and the
juvenile court made no such finding. Accordingly, we must
determine whether the State produced clear and convincing
evidence that Mathew substantially, continuously, and repeat-
edly neglected the children and failed to discharge the duties
of parental care and protection. We conclude that the evidence
falls short of this standard.
In support of its argument that the evidence supports a find-
ing that Mathew forfeited his right to custody, the State con-
tinually references the “28 months” that Mathew failed to par-
ticipate in the case, referencing the time period from August
2013, when the children were removed from Kylee’s care,
until December 2015, when Mathew first appeared in this case.
See brief for appellee at 17, 22, and 24. We initially observe
that there was a protection order in place until June 2014,
prohibiting Mathew from having contact with the children.
The record is unclear as to what contact, if any, Mathew had
with the children after the expiration of the protection order,
but Mathew’s uncontroverted testimony established that he
attempted, unsuccessfully, to contact the State on many occa-
sions regarding the children. And at least as early as February
2015, Kylee and Mathew were speaking by telephone several
- 575 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
times per week and Kylee regularly took the children to visit
him at his home in Omaha. Thus, Mathew was having consist­
ent contact with the children during that time.
The children were placed back with Kylee in August 2015,
and then once Mathew learned they had been removed again
in October, he contacted DHHS and began participating in the
case. Since that time, Mathew has driven to Columbus from
Omaha to participate in visitation, made himself available
for visits with the children at his residence, and completed a
psychological evaluation and parenting risk assessment. We
note that despite Mathew’s efforts, DHHS has repeatedly
elected to focus on Kylee, rather than Mathew, because the
goal of the case remained reunification with her. Thus, despite
Jaydon’s psychological evaluation recommending PCIT with
Mathew, the psychologist’s support for Mathew’s participation
in PCIT, and the juvenile court’s scheduling a review hearing
for January 2017 in order to assess the progress being made
in PCIT for both Kylee and Mathew, DHHS has never even
attempted to begin PCIT between Mathew and either child.
Nor had DHHS scheduled a bonding assessment to be com-
pleted between Mathew and the children, as it had done for
Kylee and the children, despite affirming that it could have
done so in order to evaluate the relationship between Mathew
and the boys and gain recommendations for strengthening
their bond. As it stood, at the April 2017 hearing on Mathew’s
motion for custody, Mathew had not had significant visita-
tion with the children since May 2016 through no fault of his
own. Yet at that time, the court was still instructing DHHS
to determine the cause of behavioral issues that peaked 11
months earlier.
Further, Mathew acknowledged that when he moved to
Georgia, he stopped paying child support and fell behind on his
obligation. Thus, he served 11 days in jail in October 2015 as
a result. However, at the time of his psychological evaluation,
he had resumed paying his child support obligation and was
attempting to “catch up” on the arrearage.
- 576 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
In short, upon our de novo review of the record, we cannot
find clear and convincing evidence of a long-term complete
indifference toward the children. See In re Guardianship of
Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005). See, also,
In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238
(2004); Gray v. Hartman, 181 Neb. 590, 596, 150 N.W.2d 120,
123 (1967) (“forfeiture of parental rights may be effected by
the indifference of a parent for a child’s welfare over a long
period of time”); Raymond v. Cotner, 175 Neb. 158, 163, 120
N.W.2d 892, 895 (1963) (forfeiture established by parent’s
“complete indifference” to child’s welfare and finding father
had not forfeited right to custody despite not having visited
the child for 9 years), overruled on other grounds, Bigley v.
Tibbs, 193 Neb. 4, 225 N.W.2d 27 (1975), overruled on other
grounds, Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483
(1980). While Mathew’s own actions caused Kylee to seek a
protection order, thereby preventing him from having contact
with the boys for 1 year, and he certainly could have made a
more significant effort upon expiration of the protection order,
we cannot find that the evidence clearly and convincingly
establishes circumstances which justify terminating Mathew’s
constitutionally protected right to care for his children; and
absent such circumstances, he is presumptively regarded as the
proper guardian for his children. See In re Interest of Lilly S. &
Vincent S., 298 Neb. 306, 903 N.W.2d 651 (2017).
We understand the juvenile court’s reluctance to uproot the
children from their long-term foster home, especially given
their recent behavioral concerns. However, the question is not
whether the children’s best interests would be served by plac-
ing their custody with Mathew. Mathew enjoys a constitutional
right to custody of Jaydon and Ethan that may be disrupted
only upon a finding that he is unfit or has forfeited his right to
custody. Finding neither, we conclude that the juvenile court
erred in denying the motion for custody.
[25] That is not to say, however, that the juvenile court is
required to order that the children be turned over to Mathew
- 577 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JAYDON W. & ETHAN W.
Cite as 25 Neb. Ct. App. 562
immediately. As stated above, the children were adjudicated
in November 2013 based upon acts of Kylee. As adjudicated
children, the juvenile court has jurisdiction over them pursu-
ant to § 43-247(3). And although the parental preference doc-
trine applies to adjudicated children, the “foremost purpose
and objective of the Nebraska Juvenile Code is to promote
and protect the juvenile’s best interests, and the juvenile code
must be construed to assure the rights of all juveniles to care
and protection.” In re Interest of Veronica H., 272 Neb. 370,
375, 721 N.W.2d 651, 654 (2006). Given the length of separa-
tion between Mathew and the children and the length of time
they have resided with their foster parents, it is in the best
interests of the children to implement a transition plan before
returning them to Mathew’s physical custody. Accordingly, we
reverse the order and remand the cause with directions to the
juvenile court to grant the motion and order implementation
of a transition plan to effectuate placement of the children
with Mathew.
CONCLUSION
We find that the order from which the appeal was taken was
a final, appealable order and that thus, this court has jurisdic-
tion over the appeal. Upon our de novo review of the record,
we conclude that the State failed to adduce clear and convinc-
ing evidence that Mathew was either unfit or forfeited his
right to custody of the children. We therefore reverse the order
of the juvenile court and remand the cause with directions
consist­ent with this opinion.
R eversed and remanded with directions.