In re Interest of Marquee N. ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/19/2022 09:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862In re Interest of Marquee N., a child
under 18 years of age.
State of Nebraska, appellee, v.
Marquee N., appellant.
___ N.W.2d ___
Filed April 19, 2022. No. A-21-687.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are
reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings; how-
ever, when the evidence is in conflict, an appellate court may consider
and give weight to the fact that the trial court observed the witnesses
and accepted one version of the facts over the other.
2. Juvenile Courts: Parental Rights. Neb. Rev. Stat. § 43-248(2) (Cum.
Supp. 2020) allows the State to take a juvenile into custody without a
warrant or order of the court when it appears the juvenile is seriously
endangered in his or her surroundings and immediate removal appears
to be necessary for the juvenile’s protection. However, the parent retains
a liberty interest in the continuous custody of his or her child.
3. Parental Rights: Notice. The State may not, in exercising its parens
patriae interest, unreasonably delay in notifying a parent that the State
has taken emergency action regarding that parent’s child nor unreason-
ably delay in providing the parent a meaningful hearing.
4. Appeal and Error. On appeal, a party cannot complain of error which
the party has invited the court to commit.
5. Parental Rights: Child Custody. The parental preference doctrine
holds that in a child custody controversy between a biological parent
and one who is neither a biological nor an adoptive parent, the biologi-
cal parent has a superior right to the custody of the child.
6. Parental Rights: Child Custody: Presumptions. Under the parental
preference doctrine, unless the State affirmatively shows a parent is
unfit or has forfeited the right to custody, due regard for the parent’s
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IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862natural right to the custody of a child requires that a parent be presump-
tively regarded as the proper guardian.
7. Parental Rights: Child Custody: Proof. Only exceptional circum-
stances involving proof of serious physical or psychological harm to the
child or a substantial likelihood of such harm will negate the superior
right of a fit parent who has not forfeited parental rights to custody
under the parental preference doctrine.
8. Juvenile Courts: Jurisdiction: Child Custody: Proof. When the alle-
gations of a petition for adjudication invoking the jurisdiction of the
juvenile court are against one parent only, the State cannot deny the
other parent’s request for temporary physical custody in lieu of a foster
care placement unless it pleads and proves by a preponderance of the
evidence that the other parent is unfit or has forfeited custody or that
there are exceptional circumstances involving serious physical or psy-
chological harm to the child or a substantial likelihood of such harm.
9. 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.
10. 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.
11. ____: ____. 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.
12. Due Process: Notice. Procedural due process generally requires that
notice be given of such a nature as to reasonably convey the required
information.
13. Parental Rights: Child Custody: Notice. In the context of denying
parental preference in a placement decision during proceedings under
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), reasonable notice must
include the factual bases for seeking to prove that the parent is unfit
or has forfeited parental rights or that exceptional circumstances exist
involving serious physical or psychological harm to the child or a sub-
stantial likelihood of such harm.
14. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
15. Juvenile Courts: Jurisdiction: Parental Rights: Proof. If the plead-
ings and evidence at the adjudication hearing do not justify a juvenile
court’s acquiring jurisdiction of a child, then the juvenile court has no
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IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862jurisdiction, i.e., no power, to order a parent to comply with a rehabilita-
tion plan, nor does the juvenile court have any power over the parent or
child at the disposition hearing unless jurisdiction is alleged and proved
by new facts at a new adjudication-disposition hearing.
16. Juvenile Courts: Parental Rights. After an adjudication under Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2016) of the Nebraska Juvenile Code
and before entering an order containing a rehabilitative plan for a par-
ent, a juvenile court shall inform the juvenile’s parent that the court may
order a rehabilitative plan and thereafter shall hold an evidential hear-
ing to determine reasonable provisions material to the parental plan’s
rehabilitative objective of correcting, eliminating, or ameliorating the
situation or condition on which the adjudication has been obtained.
17. ____: ____. While there is no requirement that the juvenile court must
institute a plan for rehabilitation of a parent, if it does, the rehabilitation
plan must be conducted under the direction of the juvenile court and
must be reasonably related to the plan’s objective of reuniting parent
with child.
18. Juvenile Courts: Appeal and Error. In analyzing the reasonableness
of a plan ordered by a juvenile court, the question is whether a provi-
sion in the plan tends to correct, eliminate, or ameliorate the situation
or condition on which the adjudication has been obtained. If it does not,
a court-ordered plan is nothing more than a plan for the sake of a plan,
devoid of corrective and remedial measures.
Appeal from the County Court for Lincoln County: Joel B.
Jay, Judge. Vacated and remanded with directions.
Claire K. Bazata, of Berreckman & Bazata, P.C., L.L.O., for
appellant.
Kortnei Smith, Deputy Lincoln County Attorney, for
appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Marquee N., Sr. (Marquee Sr.), appeals the order of the
county court for Lincoln County, sitting as a juvenile court,
which continued placement of his minor child outside the
home, declining to place the child with Marquee Sr., and
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IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862ordered Marquee Sr. to participate in drug testing. Upon our
de novo review of the record, we vacate the court’s order
declining placement with Marquee Sr. and remand the cause
with directions for further proceedings. We further vacate the
portion of the order requiring participation in drug testing at
this time.
BACKGROUND
Marquee Sr. is the biological father of Marquee N., Jr.
(Marquee Jr.), born in August 2015. On June 16, 2021, the
State filed a petition seeking to adjudicate Marquee Jr. as a
child under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
The petition alleged that on or about May 17 through June 16,
Marquee Jr. was in a situation or engaged in an occupation
dangerous to life or limb or injurious to his health or morals.
That same day, the State filed an ex parte motion for temporary
custody. The corresponding affidavit indicated that on May
17, the Nebraska Department of Health and Human Services
(DHHS) received a report regarding the welfare of Marquee
Jr. and his two siblings as it relates to their mother, Elizabeth
C. The affidavit stated that a welfare check was conducted at
Elizabeth’s home on May 4 after law enforcement was con-
tacted by Marquee Sr. who advised that he had been on a video
visit with Marquee Jr. and observed marijuana on Elizabeth’s
kitchen table. Law enforcement responded to Elizabeth’s home
and found marijuana located on the kitchen table, where the
children could access it. On June 7, Elizabeth took her children
for hair follicle testing, and Marquee Jr.’s hair tested positive
for methamphetamine and marijuana.
As to Marquee Sr., the affidavit alleged:
[Marquee] Sr. has a lengthy criminal history which
includes convictions for 3rd Degree Domestic Assault (1st
and 2nd Offense), Violation of Protection Order, and 3rd
Degree Assault.
Both domestic assaults involved [Elizabeth] as the
victim. During the first assault, [Elizabeth] was preg-
nant with Marquee Jr. During the second assault, which
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IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862occurred on July 6, 2016, [Marquee] Sr. punched
[Elizabeth] repeatedly in the face while she was holding
Marquee Jr. During the second assault, [Marquee] Sr. also
slapped 4 year old [Marquee Jr.’s half sibling] in the face
numerous times.
The juvenile court granted the ex parte motion, placing
temporary custody of Marquee Jr. with DHHS. The order for
temporary custody also ordered Marquee Sr. to submit to wear-
ing a drug patch to be monitored by DHHS. A hearing was set
for June 29, 2021.
At the hearing, the court advised Marquee Sr. of his rights,
and he entered a denial to the allegations in the petition. He
also requested a hearing on the continued detention and place-
ment of Marquee Jr. A hearing was initially scheduled for July
9, but Marquee Sr. filed a motion to continue it because he
needed additional time to obtain necessary evidence for the
hearing. The matter was continued to August 4.
At the outset of the August 4, 2021, hearing, the parties
clarified that the matter would proceed as a contested detention
hearing with Marquee Sr. requesting that Marquee Jr. be placed
in his home. The court received into evidence at the hear-
ing an order dated June 28, 2021, from the district court for
Lincoln County in a paternity case involving Marquee Sr. and
Elizabeth. The district court’s order sets forth the relevant pro-
cedural history, relating that in April 2017, the court entered a
judgment of paternity, adjudicating Marquee Sr. as the biologi-
cal father of Marquee Jr., awarded custody to Elizabeth subject
to reasonable visitation of Marquee Sr., and ordered Marquee
Sr. to pay child support. The June 28 order was entered in
response to Elizabeth’s motion to identify specific parenting
time for Marquee Sr., which the district court granted, award-
ing him the first and third weekends of every month from
Friday evening until Sunday evening and extended summer
parenting time. The district court recognized, however, that
between the time of trial on Elizabeth’s motion in its case and
entry of its order, the juvenile court had become involved with
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IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862the family; therefore, it stayed its order specifying parenting
time pending the conclusion of the juvenile court action.
The DHHS initial assessment worker testified at the
detention hearing that after Marquee Jr. was removed from
Elizabeth’s care, he inquired into placing him with Marquee Sr.
At that time, however, there was an active protection order bar-
ring Marquee Sr. from the address he provided as his residence,
and the alternative address he provided was a homeless shelter.
The initial assessment worker explained that consequently, he
was initially unable to place Marquee Jr. with Marquee Sr. The
court received into evidence at the detention hearing a certi-
fied copy of a July 15, 2021, order from the district court for
Lancaster County dismissing the protection order that had been
issued against Marquee Sr. on February 5. Thus, at the time
of the detention hearing on August 4, there was not an active
protection order against Marquee Sr.
The initial assessment worker also explained that his back-
ground check on Marquee Sr. revealed two prior DHHS
intakes involving domestic violence and a third intake that was
not investigated. The first intake occurred in 2011 and was
agency substantiated. The second intake involved the incident
reported in the affidavit alleging that Marquee Sr. assaulted
Elizabeth while she was holding Marquee Jr. The initial assess-
ment worker acknowledged, however, that this intake, which
occurred in 2016, was determined to be unfounded, meaning
there was not enough evidence to support a finding by a pre-
ponderance of the evidence that the allegations were true.
As far as Marquee Sr.’s criminal history, the initial assess-
ment worker testified that “there was domestic violence on his
criminal history” and confirmed that Marquee Sr. has had con-
victions for domestic violence in the past. The initial assess-
ment worker also found that three prior protection orders had
been acquired against Marquee Sr.
The current DHHS caseworker, who took over the case
from the initial assessment worker in July 2021, testified
that Marquee Sr. has “multiple charges related to drugs and
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Cite as 30 Neb. App. 862alcohol or possession” on his record, but that the most recent
charge was in 2009 for possession of marijuana and open
alcohol container. She was asked whether that 12-year-old
charge was concerning enough to require that Marquee Sr.
wear a drug patch. She responded that Marquee Sr. was noti-
fied he could complete an “urgent needs assessment” and that
to her knowledge, he had not done so, and without an urgent
needs assessment to provide updated information, she affirmed
that “it would be concerning at this time to me, yes.” She
acknowledged that she had no recent allegations or information
about current drug use by Marquee Sr. The initial assessment
worker likewise testified that he had not asked Marquee Sr.
about any drug or alcohol use and confirmed that the allega-
tions in the petition were solely against Elizabeth and did not
relate to Marquee Sr. When the initial assessment worker was
asked about requiring drug patch testing for Marquee Sr., he
explained that “[w]hen children are removed due to drugs in
the home, all parents [are] put on patch testing.”
After Marquee Jr. was removed from Elizabeth’s care, he
was placed with his two half siblings in the home of his mater-
nal grandmother. The initial assessment worker acknowledged
that since the time of removal, he had not visited Marquee Sr.’s
home, had not sent any other workers to visit the home, and
had not made contact with Marquee Sr.’s live-in fiance. He also
had not completed a safety assessment on Marquee Sr. because
the allegations in the case related solely to Elizabeth.
The current caseworker also admitted that she had not talked
to Marquee Sr. in person or on the phone, had not spoken to
his fiance, had not asked a courtesy worker to visit him or
interview him, had not spoken to anyone in his family, and was
unaware whether he was employed. Nevertheless, she opined
that she would not even recommend allowing Marquee Sr.
in-person visits with Marquee Jr. until she could speak with
Marquee Sr. “and discuss his case as far as his family strengths
and needs assessment, which would help build [the] case
plan.” In addition, both she and the initial assessment worker
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IN RE INTEREST OF MARQUEE N.
Cite as 30 Neb. App. 862opined that placing Marquee Jr. with Marquee Sr. was not in
the child’s best interests at that time.
In an order filed that same day, the juvenile court found that
Marquee Jr.’s care, custody, and control should continue with
DHHS for out-of-home placement. The court ordered Marquee
Sr. to begin drug patch testing and to complete an urgent needs
assessment. Marquee Sr. was awarded supervised visitation
with Marquee Jr. In an order dated August 10, 2021, the court
found that reasonable efforts had been made to return Marquee
Jr. to his home and that it would be in his best interests that
he be placed in the care, custody, and control of DHHS, and
it ordered that he remain in his current foster placement.
Marquee Sr. appeals.
During the pendency of the appeal, the State filed a motion
to dismiss the appeal as moot because Marquee Jr. had been
placed with Elizabeth, over Marquee Sr.’s objection. We
denied the motion to dismiss. Counsel for Marquee Sr. con-
firmed at oral argument that Marquee Jr. was currently placed
with Elizabeth.
ASSIGNMENTS OF ERROR
Marquee Sr. assigns, renumbered, that the juvenile court
erred in (1) failing to timely hold an evidentiary hearing
regarding the removal of Marquee Jr. in violation of Marquee
Sr.’s right to due process, (2) failing to return Marquee Jr. to
him when no allegations had been made regarding his care of
the child, (3) finding that reasonable efforts had been made to
preserve and reunify the family, and (4) failing to afford him
due process prior to ordering him to submit to wearing a drug
test patch.
STANDARD OF REVIEW
[1] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion independent
of the juvenile court’s findings; however, when the evidence is
in conflict, an appellate court may consider and give weight
to the fact that the trial court observed the witnesses and
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Cite as 30 Neb. App. 862accepted one version of the facts over the other. In re Interest
of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).
ANALYSIS
Timeliness of Initial Hearing.
Marquee Sr. assigns that the juvenile court failed to timely
hold an evidentiary hearing regarding the continued detention
of Marquee Jr. in violation of Marquee Sr.’s right to due proc­
ess. Because the hearing date was continued upon Marquee
Sr.’s request, we find no error in its timeliness.
[2,3] Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2020) allows
the State to take a juvenile into custody without a warrant
or order of the court when it appears the juvenile “is seri-
ously endangered in his or her surroundings and immediate
removal appears to be necessary for the juvenile’s protec-
tion.” However, the parent retains a liberty interest in the
continuous custody of his or her child. In re Interest of Kane
L. & Carter L., 299 Neb. 834, 910 N.W.2d 789 (2018). An
ex parte order authorizing temporary custody with DHHS is
permitted because of its short duration and the requirement of
further action by the State before custody can be continued.
Id. But the State may not, in exercising its parens patriae inter-
est, unreasonably delay in notifying a parent that the State
has taken emergency action regarding that parent’s child nor
unreasonably delay in providing the parent a meaningful hear-
ing. Id. Therefore, following the issuance of an ex parte order
for temporary immediate custody, a prompt detention hearing
is required in order to protect the parent against the risk of an
erroneous deprivation of his or her parental interests. Id. At
the detention hearing, the State must prove by a preponderance
of the evidence that continuation of the juvenile in his or her
home would be contrary to the juvenile’s welfare. See In re
Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), dis-
approved on other grounds, O’Connor v. Kaufman, 255 Neb.
120, 582 N.W.2d 350 (1998).
In In re Interest of R.G., supra, the Nebraska Supreme Court
recognized that parents have a due process right to be free
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Cite as 30 Neb. App. 862from an unreasonable delay in providing the parents a mean-
ingful hearing after an ex parte order for immediate custody
is filed. The court concluded that the mother’s due process
rights were not violated by a 14-day delay between the entry of
an ex parte order and that of a detention order when she was
given an opportunity to be heard at the detention hearing and
was allowed to visit her children in the interim. But the court
cautioned that this 14-day delay between the ex parte order and
detention hearing was “on the brink of unreasonableness.” Id.
at 423, 470 N.W.2d at 792.
In the present case, the ex parte temporary detention order
was entered on June 16, 2021, and the initial appearance
occurred on June 29. At that time, however, the juvenile court
declined to hold an evidentiary hearing and set the matter to
receive evidence related to continued detention and placement
of Marquee Jr. for July 9. Thus, the court did not intend to hold
an evidentiary detention hearing until 23 days after the ex parte
order was entered. This is 9 days beyond the timeframe the
Supreme Court labeled the “brink of unreasonableness.”
[4] However, the July 9, 2021, hearing was continued to
August 4 on Marquee Sr.’s motion. He asked for a continuance
because he needed additional time to obtain evidence necessary
for the hearing. On appeal, a party cannot complain of error
which the party has invited the court to commit. Mahlendorf v.
Mahlendorf, 308 Neb. 202, 952 N.W.2d 923 (2021). Because
Marquee Sr. asked that the hearing be continued, we cannot
predicate error on its timeliness.
Placement of Marquee Jr.
and Reasonable Efforts.
Marquee Sr. argues that the juvenile court erred in refus-
ing to place Marquee Jr. with him because the State failed
to affirm­atively show that he was unfit. We agree that the
State failed to meet its burden of proving that he was unfit.
Therefore, the parental preference doctrine required that the
court place Marquee Jr. with Marquee Sr.
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Cite as 30 Neb. App. 862[5-7] The Supreme Court has held in situations where a child
is removed from one parent’s home pursuant to the juvenile
code that the juvenile court’s discretion regarding placement
pending disposition is limited by Nebraska’s “‘parental prefer-
ence doctrine,’” which governs the rights of the other parent
against whom no allegations have been made. In re Interest of
A.A. et al., 307 Neb. 817, 845, 951 N.W.2d 144, 167 (2020).
The parental preference doctrine holds that in a child custody
controversy between a biological parent and one who is neither
a biological nor an adoptive parent, the biological parent has a
superior right to the custody of the child. Id. Under the paren-
tal preference doctrine, unless the State affirmatively shows a
parent is unfit or has forfeited the right to custody, due regard
for the parent’s natural right to the custody of a child requires
that a parent be presumptively regarded as the proper guardian.
Id. Only exceptional circumstances involving proof of serious
physical or psychological harm to the child or a substantial
likelihood of such harm will negate the superior right of a fit
parent who has not forfeited parental rights to custody under
the parental preference doctrine. Id.[8] Our case law is clear that when the allegations of a peti-
tion for adjudication invoking the jurisdiction of the juvenile
court are against one parent only, the State cannot deny the
other parent’s request for temporary physical custody in lieu
of a foster care placement unless it pleads and proves by a
preponderance of the evidence that the other parent is unfit
or has forfeited custody or that there are exceptional circum-
stances involving serious physical or psychological harm to
the child or a substantial likelihood of such harm. Id. But see,
In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804
N.W.2d 174 (2011) (requiring clear and convincing evidence
that biological or adoptive parent either is unfit or has forfeited
his or her right to custody in proceeding to terminate guardian-
ship); In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d
238 (2004) (parental unfitness must be shown by clear and
convincing evidence to overcome parental preference principle
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Cite as 30 Neb. App. 862in proceeding to terminate guardianship). There are no allega-
tions in the present case that Marquee Sr. forfeited his right
to custody or that there are any of the requisite exceptional
circumstances. Therefore, the State was required to prove that
Marquee Sr. was unfit in order to deprive him of the custody
of his child.
We note that at the detention hearing, the State placed
its focus on Marquee Jr.’s best interests. Both the initial
assessment worker and current caseworker opined that placing
Marquee Jr. with Marquee Sr. at that time was not in the child’s
best interests, and in its arguments to the court, the guardian ad
litem likewise expressed concern about moving the child from
his current placement with his grandmother and siblings, argu-
ing that allowing Marquee Jr. to remain in his current place-
ment was in his best interests. 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.
[9] Although the name of the best interests of the child stan-
dard may invite a different intuitive understanding, the stan-
dard 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 overrid-
ing recognition that the relationship between parent and child
is constitutionally protected. Id. 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. Id. Based on the idea that fit
parents act in the best interests of their children, this presump-
tion is overcome only when the parent has been proved unfit or
there has been a forfeiture. See id.
[10,11] 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., supra. In other words,
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Cite as 30 Neb. App. 862a 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., 298 Neb. 306, 903 N.W.2d 651 (2017). Stated
another way, “the fact that the State considers certain prospec-
tive adoptive parents ‘better’ [does not] overcome the consti-
tutionally 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. Id.Thus, in the instant case, the initial question is not whether
the child’s best interests are served by remaining in his current
placement because it would be “better” for him, but, rather,
whether the presumption that his best interests are served by
reuniting with Marquee Sr. has been rebutted by sufficient evi-
dence that Marquee Sr. is unfit. See id. As noted above, there
are no allegations that Marquee Sr. forfeited his right to cus-
tody, and the juvenile court made no such finding. Accordingly,
we must determine whether the State presented sufficient evi-
dence to prove that he was unfit.
[12,13] Prior to the evidentiary detention hearing, how-
ever, the State was required to give Marquee Sr. notice that it
was challenging his fitness. Procedural due process generally
requires that notice be given of such a nature as to reasonably
convey the required information. In re Interest of A.A. et al.,
307 Neb. 817, 951 N.W.2d 144 (2020). In the context of deny-
ing parental preference in a placement decision during pro-
ceedings under § 43-247(3)(a), reasonable notice must include
the factual bases for seeking to prove that the parent is unfit or
has forfeited parental rights or that exceptional circumstances
exist involving serious physical or psychological harm to the
child or a substantial likelihood of such harm. In re Interest
of A.A. et al., supra. While as to the parent from whose home
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Cite as 30 Neb. App. 862the child was removed, such notice is ordinarily contained in
the petition for adjudication, allegations as to the fault or habits
of the custodial parent do not operate to give notice to the non-
custodial parent that the State seeks to rebut that parent’s right
to parental preference in its placement decisions. Id.Here, the petition did not assert any allegations of unfitness
against Marquee Sr.; rather, the allegations were vague and
general, but the parties understood that they related only to
drug possession and use by Elizabeth. The initial assessment
worker confirmed this at the detention hearing. Therefore, the
petition itself did not place Marquee Sr. on notice that the State
intended to rebut the presumption of his parental fitness.
In his brief, Marquee Sr. relays information contained in
the affidavit the State filed in support of the ex parte tempo-
rary detention order. We note that a copy of this affidavit was
offered and received into evidence at a July 6, 2021, hearing,
but the record establishes that neither Marquee Sr. nor his
counsel were present at the hearing because the issues being
addressed related solely to Elizabeth. Despite this, because
Marquee Sr. relies on the affidavit in his arguments as to this
issue, we assume he received a copy of it prior to the deten-
tion hearing, and we assume, without deciding, that this was
sufficient to place him on notice that the State was seeking to
prove that he was unfit for placement of Marquee Jr. Because
reasonable notice must include the factual bases for seeking to
prove that the parent is unfit, the grounds upon which the State
could establish Marquee Sr.’s unfitness were limited to those
raised in the affidavit.
The affidavit alleged that Marquee Sr. “has a lengthy
criminal history,” including convictions for domestic assault,
violation of a protection order, and third degree assault. It
further alleged that both domestic assaults involved Elizabeth
as the victim and that during the first assault, she was preg-
nant with Marquee Jr. The affidavit asserted that during
the second assault, Marquee Sr. punched Elizabeth repeat-
edly in the face while she was holding Marquee Jr. and also
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Cite as 30 Neb. App. 862slapped Marquee Jr.’s then 4-year-old sibling. From this lan-
guage, we conclude that the State was limited to proving that
Marquee Sr. was unfit due to his criminal history of assault­
ive behavior.
As to the specific allegations contained in the affidavit, evi-
dence was offered to support only generalized past domestic
violence convictions. No evidence was offered to support the
allegation that Marquee Sr. had specifically been convicted of
third degree domestic assault (first and second offense), viola-
tion of a protection order, or third degree assault.
The evidence regarding Marquee Sr.’s domestic assault con-
victions came from the initial assessment worker who testified
that “there was domestic violence on his criminal history,” and
he confirmed that Marquee Sr. “has had convictions for domes-
tic violence in the past.” No additional information such as
dates of any convictions, specific crimes, or number of offenses
was offered.
Although the affidavit provided detail regarding “[b]oth
domestic assaults” which we presume relate to the allegation
of a conviction for “3rd Degree Domestic Assault (1st and 2nd
Offense),” no evidence of a conviction was offered. Rather,
the initial assessment worker explained that his background
check on Marquee Sr. revealed two prior intakes to DHHS that
alleged domestic violence, but only one was agency substanti-
ated. That incident occurred in 2011, before either Marquee Jr.
or his siblings were born and is not referenced in the affida-
vit. The other intake to DHHS was described in the affidavit
as one of the domestic assaults, and the affidavit reported
that Marquee Sr. assaulted Elizabeth while she was holding
Marquee Jr. in 2016. The initial assessment worker explained,
however, that this intake was determined to be unfounded,
meaning there was not enough evidence to support a finding by
a preponderance of the evidence that the allegations were true.
No evidence was provided as to the “first assault” described
in the affidavit which allegedly occurred when Elizabeth was
pregnant with Marquee Jr.
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Cite as 30 Neb. App. 862As stated above, there was no evidence that Marquee Sr. was
convicted of violating a protection order; in fact, there was no
evidence that he had ever violated one. The initial assessment
worker testified to “finding” three protection orders in which
Marquee Sr. was the respondent, but no dates were provided,
nor was there testimony that they had been violated. The initial
assessment worker testified that he was originally unable to
place Marquee Jr. with Marquee Sr. because there was a pro-
tection order prohibiting Marquee Sr. from the address he pro-
vided as his residence and the alternative address he provided
was a homeless shelter. However, the evidence proved that
that protection order had been dismissed and was no longer in
effect at the time of the detention hearing. In fact, the alleged
victim attended the detention hearing and was introduced to the
court as Marquee Sr.’s fiance.
Separate from the allegations in the affidavit, the State
offered evidence to prove Marquee Sr.’s unfitness on other
grounds, including the 2011 intake to DHHS which was agency
substantiated; the previous protection orders; whether Marquee
Sr. participated in the visitation that had been offered thus far
in the case; whether he was complying with the drug patch
that the court ordered in its temporary order; previous drug or
alcohol charges, with the most recent occurring in 2009; state-
ments Marquee Jr. made referring to Marquee Sr.’s hitting him
in the nose on one occasion or hitting women; and Marquee
Sr.’s refusing to return Marquee Jr. to Elizabeth for several
months in the summer of 2020. Because Marquee Sr. did not
have notice that the State would be seeking to prove his paren-
tal unfitness on these bases, however, we do not consider them
for whatever evidentiary value they may have had.
Parental unfitness means a personal deficiency or incapac-
ity which has prevented, or will probably prevent, perform­
ance of a reasonable parental obligation in child rearing and
which caused, or probably will result in, detriment to a child’s
well-being. In re Interest of A.A. et al., 307 Neb. 817, 951
N.W.2d 144 (2020). The Supreme Court has analogized the
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Cite as 30 Neb. App. 862quantum of proof necessary to prove unfitness to the proof
necessary to terminate parental rights, reasoning that “‘[i]f
the evidence of unfitness is insufficient to justify termination
of parental rights in an action maintained under the Nebraska
Juvenile Code,’” then “‘similarly deficient evidence of parental
unfitness’” would prevent a court from granting child custody
“‘to one who is a stranger to the parent-child relationship.’” In
re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 594, 804
N.W.2d 174, 182 (2011).
The evidence in the record related to Marquee Sr.’s unfitness
as a parent, and for which he had notice, includes only the ini-
tial assessment worker’s testimony that Marquee Sr. has prior
convictions for domestic violence crimes. The evidence to
the contrary establishes that a district court originally granted
Marquee Sr. parenting time with Marquee Jr. in 2017, which he
routinely exercised, and clarified his parenting time during the
pendency of this case, and that there were no concerns raised
in the context of that case related to Marquee Sr.’s fitness as a
parent such that there were any limitations placed on his par-
enting time, like supervision. We conclude that the totality of
this evidence, without more, would be insufficient upon which
to terminate Marquee Sr.’s parental rights for unfitness, and
therefore, it is insufficient to overcome the presumption of his
parental fitness.
Even if we consider the evidence of which Marquee Sr. had
no notice, we remain unconvinced that the State met its burden
of proving him unfit. The evidence lacks necessary details out-
lining what crimes Marquee Sr. has been charged with, whether
he was convicted of any of those crimes, and when any con-
victions occurred. Further, the initial intake worker alluded to
protection orders having been acquired against Marquee Sr.
in the past, but again, he did not specify when they occurred
or whether they were ultimately dismissed as was the most
recent order. There was no evidence offered to support the
allegation in the affidavit that Marquee Sr. had ever violated a
protection order. We understand the juvenile court’s concerns
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Cite as 30 Neb. App. 862of a parent with a history of domestic violence; however, we
cannot find that the evidence in our record is sufficient to
overcome the constitutionally required presumption of paren-
tal preference.
Without sufficient evidence proving that Marquee Sr. was
unfit, the parental preference doctrine required placement of
Marquee Jr. with Marquee Sr. Accordingly, we vacate the
juvenile court’s order denying placement of Marquee Jr. with
Marquee Sr. and impliedly finding him unfit, and we remand
the cause with directions for further proceedings. However,
during the pendency of this appeal, Marquee Jr. was removed
from his foster home and placed with Elizabeth. Therefore,
upon remand, the issue before the juvenile court is not place-
ment of the child as between the State and a parent, but rather
placement of the child as between two parents.
[14] Having vacated the court’s decision declining to place
Marquee Jr. with Marquee Sr., we need not address his argu-
ment that the court erred in finding that reasonable efforts
had been made to preserve and reunify the family. An appel-
late court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before
it. In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d
704 (2021).
Order for Drug Testing.
Marquee Sr. also argues that the juvenile court erred in
ordering him to submit to drug testing by wearing a drug patch
to be monitored by DHHS. We agree that these orders were
erroneous but for reasons different from those Marquee Sr.
raises here.
On June 16, 2021, the State filed the petition alleging that
Marquee Jr. was a child within the meaning of § 43-247(3)(a),
along with the ex parte motion for temporary custody. That
same day, the juvenile court entered the order granting tem-
porary custody of Marquee Jr. to DHHS. The court further
ordered Marquee Sr. “to submit to wearing a drug patch to be
monitored and paid for by [DHHS].” In the August 4 order,
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Cite as 30 Neb. App. 862the court again ordered that Marquee Sr. begin “patch testing.”
On August 10, the court found that Marquee Jr. came within
the meaning of § 43-247(3)(a) after Elizabeth did not contest
the allegations of the petition.
The court’s requirement that Marquee Sr. wear a drug patch
is erroneous for two reasons. First, prior to adjudicating a
child under § 43-247(3)(a), the court lacks jurisdiction over
the parties. When a juvenile court adjudicates a minor under
§ 43-247(3), it also obtains exclusive jurisdiction over the par-
ent, or stated another way, an adjudication under the Nebraska
Juvenile Code brings all the parties identified in § 43-247(3)
and (5) under the juvenile court’s exclusive jurisdiction. See
In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d
758 (2005). Thus, the juvenile court acquires jurisdiction over
a juvenile and his parents when it finds conditions that fit
§ 43-247(3)(a) and adjudicates the child as a juvenile within
the meaning of § 43-247(3)(a). See In re Interest of Devin W.
et al., supra.
[15] If the pleadings and evidence at the adjudication hear-
ing do not justify a juvenile court’s acquiring jurisdiction of a
child, then the juvenile court has no jurisdiction, i.e., no power,
to order a parent to comply with a rehabilitation plan, nor does
the juvenile court have any power over the parent or child at
the disposition hearing unless jurisdiction is alleged and proved
by new facts at a new adjudication-disposition hearing. In re
Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992). See,
also, Christine P. Costantakos, Juvenile Court Law and Practice
§ 3:4 (2021) (where no adjudication has taken place, court has
no authority to order parent to participate in plan of rehabili-
tation, or to fulfill any other requirement or affirmative duty
such as submit to psychological or psychiatric evaluation, drug
screens, or chemical dependency evaluation).
This court has previously observed that § 43-247 does not
grant the juvenile court jurisdiction over the parent, guardian,
or custodian of a juvenile who has merely been alleged to be
within the ambit of § 43-247; rather, the juvenile court does
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Cite as 30 Neb. App. 862not obtain jurisdiction over a juvenile’s parent, guardian, or
custodian until a finding of adjudication. See In re Interest
of Meley P., 13 Neb. App. 195, 689 N.W.2d 875 (2004). In
In re Interest of Meley P., the juvenile court entered an order
continuing temporary custody of the child with DHHS after
holding a detention hearing but prior to adjudication. In that
temporary order, the court also ordered that the parents have no
contact with each other due to a history of domestic violence.
On appeal, we found that although the State had alleged that
the child was a child within the meaning of § 43-247(3)(a),
there had not yet been a finding of adjudication. Thus, the
juvenile court lacked jurisdiction over the parents at the time
the temporary order was entered, and we reversed the provi-
sion prohibiting contact between them.
Accordingly, because the adjudication is the operative event
that confers jurisdiction of the court over the parents and the
children, prior to the adjudication, the juvenile court has no
authority to order the parents to participate in services or to
submit to treatment. See Costantakos, supra, § 2:2. Therefore,
at the time the juvenile court in this case entered the temporary
detention order and the August 4, 2021, order, both of which
occurred prior to entry of an order adjudicating Marquee Jr.
under § 43-247(3)(a), it had no authority to order Marquee Sr.
to wear a drug patch.
In addition, the court’s orders requiring Marquee Sr. to wear
a drug patch were made without notice to him that the court
may order services and without holding an evidentiary hear-
ing regarding the propriety of any services. Further, the orders
were made without any evidence that this provision was rea-
sonably related to the condition on which the allegations in the
petition were based.
[16] The Supreme Court has announced a procedural rule
requiring a juvenile court to hold a hearing before entering an
order containing a rehabilitative plan for a parent:
[A]fter an adjudication under § 43-247(3)(a) of the
Nebraska Juvenile Code and before entering an order
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Cite as 30 Neb. App. 862containing a rehabilitative plan for a parent, a juvenile
court shall inform the juvenile’s parent that the court
may order a rehabilitative plan and thereafter shall hold
an evidential hearing to determine reasonable provisions
material to the parental plan’s rehabilitative objective of
correcting, eliminating, or ameliorating the situation or
condition on which the adjudication has been obtained.
In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 272-73, 417
N.W.2d 147, 161 (1987). Fundamental fairness requires the
adducing of appropriate evidence as a factual foundation for a
rehabilitative plan which eventually may be used as a ground
or condition for termination of parental rights. Id.[17,18] Furthermore, while there is no requirement that the
juvenile court must institute a plan for rehabilitation of a par-
ent, if it does, the rehabilitation plan must be conducted under
the direction of the juvenile court and must be reasonably
related to the plan’s objective of reuniting parent with child.
See In re Interest of Rylee S., 285 Neb. 774, 829 N.W.2d 445(2013). In analyzing the reasonableness of a plan ordered by a
juvenile court, the question is whether a provision in the plan
tends to correct, eliminate, or ameliorate the situation or condi-
tion on which the adjudication has been obtained. See id. If it
does not, a court-ordered plan “‘is nothing more than a plan
for the sake of a plan, devoid of corrective and remedial meas­
ures.’” Id. at 779, 829 N.W.2d at 449.
In In re Interest of J.S., A.C., and C.S., supra, the State filed
a petition in January 1985, alleging that the children came
within the meaning of § 43-247(3)(a). During the pendency of
the case, one of the rehabilitative plan requirements was that
the mother attend Alcoholics Anonymous meetings, despite the
fact that the caseworker never saw the mother take a drink of
alcohol, detected no odor of alcohol on her, and saw no alcohol
in her home. The mother had never been evaluated for alcohol-
ism or diagnosed as an alcoholic, and there was no professional
recommendation that she undergo any course of treatment
for alcoholism or take action for an alcohol-related problem.
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Cite as 30 Neb. App. 862According to the caseworker, the mother had some unidentified
alcohol problem in the past, “‘[t]hat was like 1977, so it was
a long time back.’” In re Interest of J.S., A.C., and C.S., 227
Neb. at 260, 417 N.W.2d at 154.
On appeal, the Supreme Court held that the requirement
concerning the Alcoholics Anonymous meetings failed to meet
the test for materiality necessary in a rehabilitative plan. The
court did not dispute that everyone should be fully informed
about alcohol’s nature and the abuse of alcohol. However, a
requirement that a parent obtain such knowledge as a condition
to retaining parental rights, when the parent has no alcohol-
related problem, appeared to be a “somewhat draconian dic-
tate.” Id. at 271, 417 N.W.2d at 160. The court concluded that
under the circumstances, the mother’s attendance at Alcoholics
Anonymous meetings was immaterial to the correction, elimi-
nation, or amelioration of a condition which resulted in the
adjudication and, therefore, was irrelevant in the termina-
tion proceedings.
Likewise, here, there have been no allegations or evidence
presented that Marquee Sr. has a drug problem or that drug
testing would correct, eliminate, or ameliorate a condition
that resulted in adjudication. The initial assessment worker
acknowledged that the drug-related allegations in the petition
were solely as to Elizabeth and that he had no specific allega-
tions with respect to Marquee Sr. using drugs. The caseworker
testified that her background check on Marquee Sr. revealed
“multiple charges related to drugs and alcohol or possession”
but that the most recent charge was in 2009 for possession of
marijuana and having an open container of alcohol.
We note that the caseworker referred to “charges” and not
“convictions,” so the record is not clear as to whether Marquee
Sr. has ever been convicted of any drug or alcohol-related
offenses. Regardless, the evidence shows that the most recent
charge occurred in 2009, 12 years prior to the detention hear-
ing. Although the order for a drug patch was contained in an
ex parte temporary detention order and not a rehabilitation
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Cite as 30 Neb. App. 862plan, we find it comparable to In re Interest of J.S., A.C.,
and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987). There, the
Supreme Court did not find that a 7-year-old unidentified alco-
hol problem would indicate a current alcohol problem, and we,
too, do not find that a 12-year-old drug charge, alone, would
indicate a current drug problem necessitating drug testing as a
condition of Marquee Sr.’s reunifying with his child.
In addition, the conditions that led to removing Marquee Jr.
from the home and the filing of the petition seeking adjudica-
tion were drug use and possession by Elizabeth. The petition
did not contain any allegations against Marquee Sr. Thus, on
this record, ordering Marquee Sr. to participate in drug testing
will not remedy the condition that led to removal.
In short, the juvenile court lacked jurisdiction over Marquee
Sr. at the time it ordered him to wear a drug patch because
Marquee Jr. had not yet been adjudicated under § 43-247(3)(a).
The court, therefore, had no authority to order him to par-
ticipate in services at that time. Additionally, the court required
that Marquee Sr. submit to drug testing without notice that it
was contemplating doing so or holding an evidentiary hear-
ing, at which to receive evidence that this requirement was
appropriate and necessary. Finally, there was no evidence that
this service was material to the allegations in the petition. We
therefore vacate the provision requiring Marquee Sr. to wear a
drug patch at this stage of the litigation.
CONCLUSION
We vacate the juvenile court’s order declining to place tem-
porary physical custody of Marquee Jr. with Marquee Sr. and
remand the cause with directions for further proceedings con-
sistent with this opinion. In addition, we vacate the provision
that Marquee Sr. wear a drug patch.
Vacated and remanded with directions.