In re Interest of A.A.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/11/2020 08:07 AM CST
- 817 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817In re Interest of A.A. et al., children
under 18 years of age.
State of Nebraska, appellee, v.
Joshua C. appellant.
___ N.W.2d ___
Filed November 20, 2020. Nos. S-20-009, S-20-244.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is a question of law that an appellate court
resolves independently of the conclusions reached by the trial court.
2. Constitutional Law: Due Process. The determination of whether the
procedures afforded to an individual comport with constitutional require-
ments for due process presents a question of law.
3. 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.
4. Jurisdiction: Final Orders: Appeal and Error. Under Neb. Rev. Stat.
§ 25-1911 (Reissue 2016), for an appellate court to acquire jurisdiction
of an appeal, there must be a final judgment or final order entered by the
tribunal from which the appeal is taken.
5. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals
with the court’s ability to hear a case.
6. ____: ____. Subject matter jurisdiction is the power of a tribunal to
hear and determine a case of the general class or category to which the
proceedings in question belong and to deal with the general subject mat-
ter involved.
7. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile
and the juvenile’s parents, the court’s only concern is whether the condi-
tion in which the juvenile presently finds himself or herself fits within
the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016).
- 818 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 8178. Constitutional Law: Due Process: Parent and Child. The relationship
between parent and child is constitutionally protected and cannot be
affected without procedural due process.
9. Due Process. The concept of due process embodies the notion of funda-
mental fairness and defies precise definition.
10. ____. Due process is flexible and calls for such procedural protections
as the particular situation demands.
11. Constitutional Law: Parent and Child. The mere existence of a bio-
logical link does not merit substantial constitutional protection; rather,
the parental liberty interest in a child stems from the more enduring
relationship developed upon a biological parent’s commitment to the
responsibilities of parenthood.
12. Constitutional Law: Due Process: Parent and Child. An unwed bio-
logical father who has grasped the opportunity to establish a familial
relationship with his biological child has an interest in personal contact
with his child, which interest is given substantial protection under the
Due Process Clause of the 14th Amendment.
13. Parental Rights. When parental control fails, the State must play its
part as parens patriae.
14. ____. The rights of parenthood, even of a fit parent, are not beyond
limitation by the State’s powers and duties as parens patriae.
15. ____. Where a child is cared for by a fit parent, the State’s interest in
caring for the child is de minimis.
16. Parental Rights: Child Custody. Only the paramount interest which
the public has in the protection of the rights of the child can subjugate
the rights of parents to maintain custody of their children.
17. ____: ____. The parental preference doctrine holds that in a child cus-
tody 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.
18. 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
natural right to the custody of a child requires that a parent be presump-
tively regarded as the proper guardian.
19. 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.
20. Juvenile Courts: Jurisdiction: Child Custody: Proof. When the
allegations of a petition for adjudication invoking the jurisdiction of
- 819 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the 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 physi-
cal or psychological harm to the child or a substantial likelihood of
such harm.
21. Parental Rights: Child Custody. Because parental preference derives
not simply from biology but from the enduring relationship developed
upon a biological parent’s commitment to the responsibilities of parent-
hood, children removed from their homes due to the fault or habits of
one parent need not immediately and without some minimal investiga-
tion be placed with the other biological parent whose status as having an
actual relationship of parental responsibility is unknown.
22. Juvenile Courts: Jurisdiction: Parental Rights: Child Custody. The
nonoffending parent’s exercise of the parental preference of custody is
not entirely unfettered during the juvenile court’s continuing jurisdiction
under the juvenile code.
23. Juvenile Courts: Parental Rights. The juvenile court, in the exercise
of its parens patriae responsibilities, may develop a transition plan con-
stituting a reasonable intrusion of limited duration into the nonoffending
parent’s rights to autonomy in the care and custody of the child.
24. Juvenile Courts: Due Process: Parental Rights: Child Custody. It
does not violate due process for the juvenile court in its determination
of the child’s best interests and in its role as adjudicator of the custody
rights between two parents to require the nonoffending parent’s coopera-
tion with goals of reunification back into the home from where the child
was taken.
25. Due Process: Notice. Procedural due process generally requires that
notice be given of such a nature as to reasonably convey the required
information.
26. 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.
27. ____: ____: ____. Allegations as to the fault or habits of the custodial
parent do not operate to give notice to the noncustodial parent that the
State seeks to rebut that parent’s right to parental preference in its place-
ment decisions.
- 820 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 81728. Handicapped Persons: Parent and Child: Parental Rights:
Presumptions. There is no presumption that a disabled parent is unfit,
that a disabled parent 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 because a parent
is disabled.
29. Handicapped Persons: Parent and Child: Presumptions. The simple
fact that a parent is disabled does not overcome the presumption that the
parent is a better caretaker of the parent’s own child than the State is.
30. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error. A
juvenile court is not wholly divested of jurisdiction during the pendency
of an appeal from a final order.
31. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. The extent
of the continuing jurisdiction of the separate juvenile courts and the
county courts sitting as juvenile courts during the pendency of an
appeal is not without limits and must be determined by the facts of
each case.
32. Juvenile Courts: Jurisdiction: Parental Rights. The juvenile courts’
continuing jurisdiction does not include the power to terminate a juve-
nile’s relationship with the child’s parents.
33. Judges: Recusal: Time. The issue of judicial disqualification is timely
if submitted at the earliest practicable opportunity after the disqualifying
facts are discovered.
34. Judges: Recusal: Presumptions. There exists a presumption of judicial
impartiality, and a party alleging that a judge acted with bias or preju-
dice bears a heavy burden of overcoming that presumption.
35. Judges: Recusal. A judge’s opinions based on facts presented dur-
ing a hearing, even if those opinions are stated before the hearing’s
conclusion, are not indicative of bias by the judge unless they display
a deep-seated favoritism or antagonism that would make fair judg-
ment impossible.
Appeal from the Separate Juvenile Court of Lancaster
County: Reggie L. Ryder, Judge. Judgment in No. S-20-009
reversed, and cause remanded with directions. Judgment in
No. S-20-244 affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Douglas J. Peterson, Attorney General, C.J. Roberts, Special
Assistant Attorney General, and Patrick Condon, Lancaster
County Attorney, and Haley N. Messerschmidt for appellee.
- 821 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
Upon allegations that the mother had endangered her 6-year-
old child who was living with her, the Nebraska Department
of Health and Human Services (DHHS) was given temporary
legal and physical custody of the child and his half siblings,
who were placed together in temporary foster care. No allega-
tions were made against the child’s legal father, who did not
at that time live with the child and did not have notice of the
hearing on temporary custody. There was an acknowledgment
of paternity, and the father had lived with and helped support
the child and his mother for approximately 5 years up until
the father developed Guillain-Barre syndrome approximately
7 months before the petition for adjudication was filed. After
the father became aware that his child was in foster care, he
moved for temporary physical placement, which the juvenile
court denied. The court reasoned that the father was “unfit” for
placement at that time due to his unwillingness to cooperate
with DHHS in forming a placement plan that addressed con-
cerns stemming from a physical disability.
In case No. S-20-009, the father appeals the denial of his
motion for placement, arguing that the State did not sustain
its burden to affirmatively prove him unfit by a preponder-
ance of the evidence before depriving him of his fundamental
liberty and privacy interests in caring for and guiding his child
without undue interference. He also challenges the jurisdic-
tion of the juvenile court based upon filing dates and scriv-
ening details pertaining to the ex parte order removing the
children from the mother’s home. While his appeal in case
No. S-20-009 was pending, the court proceeded with adjudica-
tion of the child over the father’s objection. In the appeal in
case No. S-20-244, the father argues that his appeal in case
No. S-20-009 divested the juvenile court of jurisdiction to
issue the adjudication order.
- 822 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817II. BACKGROUND
Joshua C., the legal father of B.C., appeals in case No.
S-20-009 from the juvenile court’s order denying his motion
for temporary physical placement of B.C. in his home pending
the adjudication of B.C. under a petition making allegations
of endangerment by the mother. In case No. S-20-244, Joshua
appeals from the court’s subsequent order adjudicating B.C.
due to the fault or habits of B.C.’s mother. We have consoli-
dated the two cases, Nos. S-20-009 and S-20-244, for purposes
of oral argument and disposition.
1. October 14, 2019, Ex Parte
Emergency Temporary Order
(a) Motion
On October 14, 2019, a Monday, a motion for an ex parte
order for emergency temporary custody was file stamped in
the separate juvenile court of Lancaster County. Three chil-
dren, A.A., M.A., and B.C., were listed in the caption. In the
motion, the county attorney asserted that “the above-named
juveniles are endangered in such conditions or surroundings
that the juveniles’ welfare and best interest require immedi-
ate removal.”
The affidavit in support of the motion, dated October 11,
2019, listed in its caption four children, D.W., A.A., M.A.,
and B.C.
In the affidavit, Officer Jarid Freyermuth stated that on
October 11, 2019, he was dispatched on a report of “belated
child neglect” in Lincoln, Nebraska. D.W., age 12, had reported
that his mother had threatened him with a steak knife an hour
prior, during the course of an argument about not properly
storing an open bag of hotdogs. The mother had reportedly
cornered D.W. while armed with the knife and, when he put his
hands on her upper chest area to defend himself, placed the tip
of the knife on his shoulder and said, “‘[I]f you touch me I’ll
stab your hands.’”
- 823 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817Freyermuth reported that D.W.’s siblings, A.A., M.A., and
B.C., corroborated D.W.’s description of the incident and that
the mother ultimately admitted to arming herself with the knife
and threatening D.W. Freyermuth reported that she denied,
however, “touching D.W. with the knife even when faced with
the fact that D.W. had an injury resembling being touched with
the knife.”
According to the affidavit, D.W. was turned over to his
father, while an employee of DHHS took emergency custody
of the other three children. The mother was taken to jail on
October 11, 2019, upon charges of felony child abuse, terroris-
tic threats, and use of a weapon to commit a felony.
Freyermuth averred that the children were in such condi-
tion or surroundings that their welfare required the court to
assume temporary custody immediately by endorsement upon
the summons or separate order directing that the children be
taken into custody at once, with proper arrangements being
made for their temporary custody and care pending a hearing
on a petition.
(b) Order
The juvenile court signed an ex parte order for emergency
temporary custody on Saturday, October 12, 2019. The order
was not file stamped until Monday, October 14.
The caption for the order listed A.A., M.A., and B.C. D.W.
was not named in the caption. The order described that pur-
suant to Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2018), the
“above-named juveniles’ needs require that they be taken into
emergency custody and placed with [DHHS].”
Pursuant to the ex parte order, a temporary custody hearing
was scheduled for October 16, 2019. Notice of the hearing was
to be sent to the parents and guardians identified in the affida-
vit. Joshua was not identified.
The court found in the ex parte order that DHHS could,
at its discretion, return the children home pending the place-
ment hearing. The ex parte order was to expire if the county
- 824 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817attorney failed to file a petition by October 15, 2019, at 4:30
p.m. A guardian ad litem was appointed.
2. October 14, 2019, Petition
A petition was filed in juvenile court on Monday, October
14, 2019, at approximately 4 p.m. All four children, A.A.,
M.A., B.C., and D.W., were named in the caption. The peti-
tion alleged that A.A., M.A., B.C., and D.W. were within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), by
reason of the fault or habits of their mother, or that they were
in a situation injurious to life or limb or their health or morals,
based on the incident on October 11 in which she threatened
one of them with a knife. The adjudication was based on no
other events. No allegations were made against Joshua.
While the alleged father of D.W. was listed in the petition
as a person to be served with a summons, no other father was
identified. Likewise, only the father of D.W., and the children’s
mother, were identified in the praecipe for summons, dated
October 17, 2019, to be served with copies of the petition. The
record does not reflect that the court published notice, because
a parent’s name was unknown, as provided for in Neb. Rev.
Stat. § 43-268 (Reissue 2016).
3. October 17, 2019, Temporary
Custody Order
A hearing on the motion for temporary custody was held on
October 16, 2019. Neither Joshua nor his counsel was present.
The appellate record does not contain a transcription of the
October 16 hearing.
In an order on October 17, 2019, the court found that
although DHHS was making reasonable efforts to eliminate
the need for out-of-home placement, remaining in the home
at that time would be contrary to the children’s health, safety,
and welfare, and that it was in their best interests to remain in
out-of-home placement. The court ordered that temporary legal
and physical custody remain with DHHS. The mother was
- 825 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817given reasonable rights of supervised parenting time so long
as she was not in custody.
Only A.A., M.A., and B.C. were listed in the caption for the
order of temporary custody. Joshua was not served with a copy
of the order.
4. Joshua’s Intervention and Request for
Placement on October 30, 2019
On October 30, 2019, Joshua, through his attorney, filed a
motion for leave to intervene and for immediate placement of
B.C. with him. In the motion, Joshua alleged that he was B.C.’s
biological father and that with the exception of a 1-year separa-
tion from B.C.’s mother, from B.C.’s birth in August 2013 until
July 2019, B.C. and his mother had lived with Joshua, during
which time Joshua had provided continuous care and support
for B.C.
Joshua did not explain when he received actual notice of
the juvenile proceedings relating to B.C. Joshua described only
that on or about October 29, 2019, a DHHS employee had
informed him that DHHS would not consider placing B.C. in
his care and custody.
Joshua did not in the motion challenge the prior orders of the
court on due process or any other grounds. He did not move for
legal custody.
Hearings on the motion were held on November 21 and
December 23, 2019.
(a) November 21, 2019, Hearing
At the November 21, 2019, hearing, Joshua testified that
he has lived for approximately 8 years in Superior, Nebraska,
where he owns a four-bedroom house in the center of town.
Joshua testified that he was in a romantic relationship with
B.C.’s mother from approximately July 2012 until July 2019.
During that time, they conceived B.C., who was born in
August 2013. Joshua testified that he had signed an acknowl-
edgment of paternity but had forgotten to bring it to the
- 826 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817November 21 hearing. There was no evidence of an adjudica-
tion of custody rights between the two parents.
B.C. and B.C.’s mother lived with Joshua during the entirety
of their relationship with the exception of a year when she and
B.C. had moved out, 2 or 3 years before the hearing, and then
moved back in.
Joshua described that in late February 2019, he developed
Guillain-Barre syndrome. He was hospitalized for a month and
then spent approximately 6 months in rehabilitation centers
until returning home in September. It was during his illness
that his relationship with B.C.’s mother ended.
At the time of the hearing, Joshua had been home for
approximately 2 months. B.C. visited Joshua 5 to 10 times
while Joshua was residing at rehabilitation centers. Joshua tes-
tified that he had seen B.C. only twice since returning home,
during two weekend visits arranged with B.C.’s current place-
ment caretaker.
Joshua lives alone, but has a 15-year-old child who stays
with him every Wednesday overnight and every other Thursday
through Sunday.
As of the time of the hearing, Joshua was still unable to get
around without a wheelchair. He had the aid of home health
care in the mornings. He was unable to fully sit himself up in
his wheelchair without assistance. Before developing Guillain-
Barre syndrome, Joshua worked as a pipewelder. Since his
illness, he has relied on Social Security disability payments.
Joshua testified that he was financially able to provide for B.C.
Joshua did not believe his physical limitations impaired his
ability to properly parent or supervise B.C.
Joshua testified that his grandfather had agreed to take B.C.
to and from school. The school bus stopped only “three blocks
away.” Joshua could also reach out to his mother, if she was
not working, as well as to “[f]riends and just people in the
community,” for school transportation. Joshua named a couple
of people who had volunteered to help. Joshua explained that
- 827 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the transportation company he uses would be able to transport
B.C. to any appointments.
As far as feeding B.C., Joshua testified that “[t]here’s the
local grocery store and then there’s the Dollar General.” Joshua
testified that he was not yet cooking any of his own meals, but
that his mother, his grandfather, and the aides had all said they
would be willing to prepare meals for B.C. Alternatively, he
could order takeout or delivery.
Joshua described a nightly routine for B.C. that would
involve homework, television, showering, and brushing teeth.
He did not foresee its being a problem that he generally did not
have assistance overnight.
Joshua said that DHHS had been in contact with him about a
placement plan. There had been some discussion about placing
B.C.’s half siblings with Joshua as well. Joshua was willing to
serve as such a placement.
The plan that was developed was originally going to involve
having Joshua’s mother stay overnight. At that time, his mother
was spending the night in Joshua’s home to help care for him.
She had been staying the night at Joshua’s house from the time
of his return from the rehabilitation centers up until approxi-
mately 2 weeks before the November 21, 2019, hearing.
Joshua explained that as of early November 2019, his mother
no longer wished to stay overnight. Joshua did not reach out
to notify DHHS that his mother would no longer be staying
the night, but confirmed that was true when DHHS called
and asked.
Joshua testified that he was willing to have a conversation
with DHHS about any logistical concerns of how to address
emergencies or other childcare issues that might arise in the
middle of the night. Joshua conceded that he had refused to
sign a medical release to allow DHHS to review his medical
records relating to his Guillain-Barre syndrome prognosis,
explaining, “I’m just not prepared to do it right now, okay.”
At the close of the day on November 21, 2019, the court
noted that the hearing would be continued in order to allow
- 828 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the parties to present additional evidence. The court told
Joshua that he had “come a long way.” The court stated that it
needed to see the acknowledgment form. The court continued
to explain that, also, “we need to make sure there’s a plan,”
elaborating:
[W]e’ve talked about evenings. We haven’t talked about
weekends when he’s not in school. We haven’t talked
about a snow day that we’re probably going to have. We
haven’t talked about two or three weeks of not being in
school during Christmas. We’ve got to make sure we’ve
got a plan. It sounds like you’ve thought about it a little
bit but I’d want to make sure before I’m going to say he’s
in your care, that we’ve got a daily consistent plan and
schedule. Who’s going to be coming over. Who can we
call at 2:00 in the morning if he has a nose bleed, a fever.
If he falls out of bed. If he’s scared and I understand you
would like to be there and right now you’re limited on
doing that. So we’ve got to make sure we’ve got a safe
and smart plan . . . . I’ve got to make sure we’ve got, you
know, a plan that’s — that’s really pretty much consist­
ent. Who’s going to be on call at 2:00 in the morning.
Who’s going to be there on the weekends. Who’s going
to be preparing the meals because on the weekends we’ve
got breakfast, lunch, we’ve got dinner. And we’ve got
snacks. We’ve got a lot of things that six year olds need
help with so we’ll certainly hear more about that at the
next hearing[.]
(b) December 23, 2019, Hearing
At the continuation of the hearing on December 23, 2019,
Joshua offered into evidence the acknowledgment of pater-
nity containing the notarized signatures of both Joshua and
B.C.’s mother in August 2013, which the court received. The
exhibit reflects that the acknowledgment had been filed with
DHHS as required by Neb. Rev. Stat. § 43-1408.01 (Reissue
2016). As soon as the acknowledgment was received, the
- 829 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817court orally pronounced that Joshua’s motion to intervene was
granted, and the only motion still pending was placement.
(i) Joe Knott’s Testimony
Joe Knott, an employee of DHHS, testified that an inspec-
tion of Joshua’s home found it to be in appropriate condition
and that DHHS had previously “ironed out a plan” with Joshua
for placement of the children with him around November
4, 2019. That plan, however, had “deteriorated” by the time
of the scheduled placement due to the sudden departure of
Joshua’s mother as an overnight caretaker. Accordingly, place-
ment was delayed.
Knott checked in a few more times throughout that week
to see if there had been any change in the situation. After a
couple of conversations in which Joshua indicated nothing had
changed, Knott was unable to reach Joshua. Knott testified that
he “left voicemails trying to figure out a way that we could
remedy the situation and kind of make sure that we had some-
thing that was in place so that it would allow us to move for-
ward with placement, but I did not hear back from [Joshua].”
At some point, B.C., A.A., and M.A. were placed together in
another home.
Since the unsuccessful prior attempts at moving forward
with placement with Joshua, communication between Joshua
and DHHS had involved one conversation about the two visits
with B.C. and B.C.’s half siblings facilitated by B.C.’s current
placement and one conversation about “placement and things
that we’d like to see.” After that, Knott understood Joshua had
“been advised by his attorney not to speak with us.”
According to Knott, B.C.’s mother had indicated “she did
not want any of her ex’s to have placement of the children.”
This conversation apparently occurred after the November 21,
2019, hearing. She had originally told Knott that B.C. was
“well bonded” with Joshua.
Knott described that if Joshua were willing to work with
DHHS, DHHS would gather information about reasonable
accommodations that Joshua would be making “in terms of
- 830 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817finding individuals that are willing [and] able to assist him
with the placement to make sure that it can be done effec-
tively, and that there’s no safety concerns for [B.C.,] who’s six
years old.” Knott opined that “just being able to identify those
individuals that would be willing and able to help in certain
situations I think would be very helpful and go a long way
into helping us develop and firm up a plan.” Knott noted that
DHHS would want to run background checks on any poten-
tial caretakers.
Since the November 21, 2019, hearing, Knott and a case-
worker had reached out to Joshua’s attorney via email several
times, requesting that they have discussions to work out a
placement plan or visitation. Neither Joshua nor his attorney
had responded to such requests. Knott expressed having certain
concerns until DHHS could work with Joshua in developing a
plan regarding the logistics of placement, mainly about how
Joshua would handle hypothetical emergent situations that
could arise in the middle of the night. Knott testified that he
believed that because B.C. was a state ward, DHHS had certain
obligations to ensure the safety of any placement—apparently
including with a noncustodial parent against whom no allega-
tions had been made. According to Knott, “the biggest barrier”
to placement with Joshua was “not being able to have an open
and honest conversation” with him.
Part of Knott’s testimony was adduced upon questioning
by the juvenile court judge. The judge asked if, since the
prior hearing, Knott had been given any more specifics about
assistance with meal preparation or general preparedness to
care for B.C. over the upcoming holiday break, which Knott
testified he had not. Further, Knott agreed, upon the judge’s
questioning, that it was possible “that had [Joshua] cooperated
with [DHHS] and [its] efforts from the last hearing to come
up with a plan, [Knott] could’ve been in a position today to
recommend [B.C.] be placed with [Joshua] in his home today.”
Knott also agreed with the judge that it was “fair to say” that
Joshua’s “unwillingness to do that has delayed in progress in
- 831 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817that regard.” Finally, the court asked several questions of Knott
regarding DHHS’ requirements, responsibilities, and expecta-
tions once a child becomes a state ward. Knott affirmed that
DHHS felt a responsibility to be able to follow up on place-
ments, going to the home at least once a month for private con-
versations with the child and caregivers to see how things were
going. Knott testified he was concerned that Joshua would not
allow that.
(ii) B.C.’s Mother’s Testimony
B.C.’s mother testified at the hearing that during the course
of her relationship with Joshua, which she said ended in May
2019, they had arguments that sometimes became “physical.”
She described one incident over winter break in 2015 when
Joshua was intoxicated and threatened to shoot himself, shoot
her, and then shoot the children. It was unclear if Joshua was
brandishing a weapon at that time. The police intervened,
arrested Joshua, and confiscated his weapons. She testified that
Joshua was initially charged with terroristic threats but that the
charges might have been dropped.
B.C.’s mother testified that her “only concern” with B.C.’s
being placed in Joshua’s care was “if he’s mentally capable of
handling certain situations.” When asked, she also affirmed she
was concerned with excessive drinking. She testified that when
she moved out, Joshua had approximately 13 guns locked in a
gun safe he had acquired after the terroristic threats incident.
(c) December 23, 2019, Order Granting
Intervention and Denying Placement
At the close of the evidence, Joshua’s counsel argued that
a parent who is not the subject of a petition to adjudicate the
child retains constitutional parental preference such that a child
removed from the home under a petition alleging fault or habits
of the other parent must automatically be placed with the par-
ent who is not the subject of the petition.
Joshua’s counsel referred to the motion for placement as
being “actually a little bit awkward because the Court has
- 832 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817not acquired jurisdiction over this child”—an allegation that
was apparently elaborated upon in the trial brief that is not in
the record. Also, Joshua’s counsel referred to the court’s “argu-
mentative suggestions — suggestive and leading questions”
of Knott. But Joshua’s counsel did not move to disqualify the
juvenile court judge.
The court disagreed with Joshua’s arguments, including that
it had to place B.C. with him because of the parental prefer-
ence doctrine. The court stated that based on the evidence pre-
sented, Joshua was “currently a parent who’s unfit to have his
child placed in his care.” It also found that it was not in B.C.’s
best interests for the placement to occur.
In support of these conclusions, the court cited “[t]he lack
of any ability to try to overcome the concerns.” The court
explained that it had “made it very clear” a month before
what its concerns were and that DHHS had “made a number
of efforts to try to overcome those issues and concerns and
unfitness.” The court stated, “[T]here hasn’t been any coopera-
tion whatsoever.”
In an order filed on December 23, 2019, the court found
that Joshua was B.C.’s father and allowed Joshua to intervene.
The same order memorialized the court’s denial of Joshua’s
motion for placement. The court found that Joshua was not
“currently a fit and proper parent to have custody,” noting that
Joshua “has not been willing to work with DHHS to develop
a plan to overcome the barriers to approving that placement.”
Due in part to such lack of cooperation, the court found that “it
would not be safe” for B.C. “to be placed in the home of his
father at this time.” Such placement would be “contrary to the
health, safety, and welfare” of B.C. and would not be in B.C.’s
best interests.
The court ordered DHHS to continue to make efforts to work
with Joshua to overcome the barriers to placement, noting that
once a plan is in place that ensures the safety and well-being
of B.C., Joshua could petition the court for placement and a
further hearing would be timely scheduled. Joshua appealed the
December 23, 2019, order.
- 833 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 8175. February 27, 2020, Order
of Adjudication
Subsequently, the juvenile court held a hearing on adjudica-
tion. Joshua objected to the hearing on the ground that his pend-
ing appeal of the denial of his motion for placement divested
the court of jurisdiction to adjudicate B.C. The court found the
case law relied upon by Joshua inapposite and found that the
mother had an interest in case progression so that a rehabilita-
tive plan could be developed to place B.C. back in her care as
soon as possible. The juvenile court accepted the mother’s plea
of no contest to the petition for adjudication.
In an order dated February 27, 2020, the court overruled
Joshua’s objection. The court articulated as part of its findings
that “[t]he current goal in this case is to return the juveniles to
the custody of [their mother].”
That same date, the court issued an order adjudicating B.C.
and his half siblings as lacking proper parental care by reason
of the fault or habits of their mother and determining that they
were in a situation dangerous to their life or limb or injurious
to their health or morals. At some point, the court had placed
B.C. and his half siblings in a different foster care home from
where they were first placed. The court ordered all prior tem-
porary orders to remain in effect.
III. ASSIGNMENTS OF ERROR
In his appeal in case No. S-20-009 from the denial of his
motion for placement, Joshua assigns, restated, that the juvenile
court (1) erred by denying his motion for temporary placement;
(2) was biased when considering his motion for placement; (3)
erred by imposing, contrary to his superior parental right to
custody and due process, the burden of proof on Joshua in rela-
tion to the placement decision; (4) treated him differently from
the father of D.W., in violation of equal protection principles;
and (5) issued void orders in the ex parte order of emergency
temporary custody and the October 16, 2019, continuation of
such temporary custody.
- 834 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817In his appeal from the adjudication order in case No.
S-20-244, Joshua assigns that (1) the juvenile court erred in
overruling his objection to proceeding with the hearing on the
petition as to B.C. on the ground that the juvenile court had
no jurisdiction to adjudicate B.C. due to the pending appeal in
case No. S-20-009; (2) the juvenile court’s order on February
27, 2020, adjudicating B.C. is void for lack of jurisdiction; and
(3) the juvenile court judge’s remark that “[t]he current goal
in this case is to return the juveniles to the custody of [their
mother]” was prejudicial and required disqualification.
IV. STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is a question of law that an appellate court resolves
independently of the conclusions reached by the trial court. 1
[2] The determination of whether the procedures afforded to
an individual comport with constitutional requirements for due
process presents a question of law. 2
[3] 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 accepted
one version of the facts over the other. 3
V. ANALYSIS
1. Jurisdiction Over Appeal
[4] We first address whether we have jurisdiction over the
order denying Joshua’s motion for placement that is being
appealed in case No. S-20-009. Under Neb. Rev. Stat. § 25-1911(Reissue 2016), for an appellate court to acquire jurisdiction
1
See In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d
413 (2015).
2
In re Interest of Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789(2018).
3
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
- 835 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817of an appeal, there must be a final judgment or final order
entered by the tribunal from which the appeal is taken. 4 Also,
Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) provides that
“[a]ny final order or judgment entered by a juvenile court
may be appealed to the Court of Appeals in the same manner
as an appeal from district court to the Court of Appeals,” and
§ 43-2,106.01(2)(c) specifies that such appeal may be taken by
“[t]he juvenile’s parent.”
Because the juvenile proceedings are still ongoing, there
has yet to be a judgment. 5 The State asserts that the December
23, 2019, order denying Joshua’s motion for placement is
not a final, appealable order as defined by Neb. Rev. Stat.
§ 25-1902 (Supp. 2019). The State acknowledges that orders
governing temporary placement away from a parent ordinarily
constitute final orders pursuant to § 25-1902(1)(b), as orders
affecting a substantial right made during a special proceed-
ing. 6 It argues, however, that the denial of Joshua’s motion for
placement was a mere continuation of the court’s prior order
on October 17 of temporary physical custody remaining with
DHHS, outside of the mother’s home, and that the December
23 order therefore did not have a substantial effect on Joshua’s
substantial rights.
We have said that when an “‘order from a juvenile court
is already in place and a subsequent order merely extends
the time for which the previous order is applicable, the sub-
sequent order by itself does not affect a substantial right and
does not extend the time in which the original order may
be appealed.’” 7 But when we have thus found a subsequent
4
State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).
5
See Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).
6
See, In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991); In re
Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on
other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350(1998).
7
See, e.g., In re Guardianship of Rebecca B. et al., 260 Neb. 922, 931, 621
N.W.2d 289, 295 (2000).
- 836 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817order to “‘merely extend[] the time’” of the prior order, the
interests of the person who wished to appeal the subsequent
order had been specifically adjudicated by the prior order and
that person had notice of the prior proceedings and accordingly
had the opportunity to appeal it. 8
Here, the October 17, 2019, order was issued before Joshua
intervened. He was given no notice of the proceedings leading
up to the October 17 order, did not participate in that place-
ment hearing, and was not given notice of the order itself.
Furthermore, in making its placement decision in the October
17 order, the court had not been presented with Joshua as a
possible placement. The juvenile court had not been asked,
pursuant to a motion for placement, to adjudicate B.C.’s tem-
porary custody in light of the parental preference doctrine as
applies to Joshua. Rather, the court considered only whether
the mother was at that time unfit for physical custody such that
B.C. should remain outside of her home. Different rights were
affected by the October 17 order maintaining B.C.’s temporary
custody outside of the mother’s home and the December 23
order denying Joshua’s motion for temporary custody.
The court’s December 23, 2019, order denying Joshua’s
motion for custody did not merely extend the time of the appli-
cability of the October 17 order of temporary custody outside
of the mother’s home and in foster care. Instead, it was the
juvenile court’s first adjudication of Joshua’s parental right to
temporary physical custody of B.C. over the State’s interest in
custody. The December 23 order presented Joshua’s first oppor-
tunity to appeal its determination of that issue. The December
23 order was final under § 25-1902(1)(b), and we have jurisdic-
tion over the appeal in case No. S-20-009.
2. Subject Matter Jurisdiction
Joshua makes several arguments that seek to vacate the
underlying order granting the State temporary legal custody
over B.C., which necessitated Joshua’s motion for placement
8
See id.
- 837 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817so that B.C. would not be in foster care. He believes that the
October 17, 2019, order is “void” 9 for lack of subject matter
jurisdiction. We disagree.
Joshua’s reasoning is complicated. He argues that the
October 14, 2019, ex parte order of emergency temporary cus-
tody was void for four reasons. First, he argues there was no
order of temporary custody filed within 48 hours as required
by Neb. Rev. Stat. § 43-250(2) (Cum. Supp. 2018), which, he
notes, does not expressly exclude nonjudicial days. Second,
Joshua asserts that the ex parte order was void because there
was no petition filed in accordance with § 43-247 and Neb.
Rev. Stat. § 43-261(1)(a) (Reissue 2016) at the time of the ex
parte order and because there is no statute authorizing a juve-
nile court to issue such an order in the absence of a petition.
Third, Joshua takes issue with the fact that the motion for the
ex parte order was file stamped at the exact same time as the
order granting the same, this allegedly being “problematic” 10
and implicating procedural due process because the order was
not in response to a motion. Fourth, he alleges that because the
ex parte order did not attach the affidavit, it is “impossible to
know for certain” 11 whether the affidavits relied on by the court
were made part of the record of the proceedings as required in
In re Interest of R.G. 12
The alleged voidness of the ex parte order in turn alleg-
edly rendered the October 16, 2019, hearing void, which,
in turn, allegedly rendered the October 17 order continuing
temporary custody void, “because it was premised on a hear-
ing that, legally, was never ordered to occur.” 13 Joshua asserts
that it does not matter that a petition for adjudication under
§ 43-247(3)(a) was filed between the filing of the ex parte
9
Brief for appellant in case No. S-20-009 at 19.
10
Id. at 48.
11
Id.
12
In re Interest of R.G., supra note 6.
13
Brief for appellant in case No. S-20-009 at 20.
- 838 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817order and the hearing, because the untimely petition could not
“resuscitate a void order” and “there is no statutory or judicial
authority in Nebraska for a juvenile court ordering or holding a
hearing on the issue of a juvenile’s pre-adjudication detention
or placement in the absence of a prior, valid pre-adjudication
detention or placement order or a properly filed motion by
the State.” 14
[5,6] Subject matter jurisdiction deals with the court’s abil-
ity to hear a case. 15 Subject matter jurisdiction is the power of
a tribunal to hear and determine a case of the general class or
category to which the proceedings in question belong and to
deal with the general subject matter involved. 16
[7] We have held that to obtain jurisdiction over a juvenile
and the juvenile’s parents, the court’s only concern is whether
the condition in which the juvenile presently finds himself or
herself fits within the asserted subsection of § 43-247. 17 The
juvenile court’s subject matter jurisdiction in this case was
conferred by § 43-247, which provides that “[t]he juvenile
court . . . shall have . . . jurisdiction of ” any juvenile defined
in § 43-247(3) and of the “parent, guardian, or custodian.”
Section 43-247(3) describes the circumstances of the juvenile,
including one who is in a situation dangerous to life or limb
or injurious to the health or morals of such juvenile. Section
43-247(5) describes “[t]he parent, guardian, or custodian of
any juvenile described in this section.”
While procedural due process requires that a petition for
adjudication allege specific factual allegations as to why the
juvenile falls under § 43-247(3)(a), 18 it has been held that
14
Id. at 42 (emphasis omitted).
15
In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758 (2005).
16
Id.17
See, In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 110 (2015); In
re Interest of Devin W. et al., supra note 15.
18
See, e.g., In re Interest of Trenton W. et al., 22 Neb. App. 976, 865 N.W.2d
804 (2015).
- 839 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817even inadequacies in the petition pertaining to parental notice
do not divest the juvenile court of its subject matter jurisdic-
tion. 19 Not all juveniles over which the juvenile court exercises
subject matter jurisdiction pursuant to § 43-247 have been
temporarily removed from the home pursuant to an ex parte
order. There is nothing in the juvenile code indicating that the
procedures governing ex parte orders are integral to the juve-
nile court’s subject matter jurisdiction to subsequently issue a
temporary custody order following a petition for adjudication
under § 43-247 and an evidentiary hearing.
Irregularities pertaining to the ex parte custody order could
not render the October 17, 2019, order void. We need not
address the merits of these alleged irregularities leading to
the October 14 temporary ex parte order that is no longer in
effect and is moot. 20 The ex parte order has no bearing on the
December 23 order on Joshua’s motion for placement. The
juvenile court has jurisdiction to determine the proper place-
ment of B.C. while the juvenile case brought under the petition
for adjudication under § 43-247(3)(a) remains open. We pro-
ceed to the merits of its December 23 order.
3. Placement
Joshua argues that when a petition under § 43-247(3)(a) is
based on the conduct of one parent, unless the State affirma-
tively pleads and proves the unfitness of the other parent who
does not reside in the home the child was removed from, the
parental preference doctrine requires that the child be placed
with the other parent instead of in foster care. Joshua elabo-
rates that procedural due process requires that the noncusto-
dial parent be given notice of specific allegations of unfitness
before the State can deprive such parent of temporary custody
pursuant to that parent’s constitutionally protected parental
19
See In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012).
20
See State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679
N.W.2d 749 (2004).
- 840 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817preference. And a parent who is not described in a petition
for adjudication is not given the necessary notice unless other
filings are made.
Joshua points out that the State never alleged in any filings
in juvenile court that he was unfit or had forfeited his superior
right to custody, and he asserts that the court violated his due
process rights both by litigating unfitness and by placing upon
him at the hearings on his motion for placement the burden
of demonstrating that he was fit to parent B.C. He argues that
once he established his constitutionally protected status as a
parent, the motion for placement should have been granted
without further inquiry. He was not required to cooperate with
DHHS in forming a plan that would provide assurances of
B.C.’s safety, because the parental preference doctrine dictates
that absent a showing of unfitness, he has a superior right to
custody without undue State interference. Alternatively, Joshua
argues that the evidence did not establish by a preponderance
of the evidence that he was unfit.
The State, for its part, points out that it has been granted
temporary legal custody over B.C. and is attempting to duti-
fully exercise its parens patriae responsibility to ensure B.C.’s
welfare wherever he is placed. And the juvenile code contem-
plates jurisdiction over not only the child described therein, but
also over such child’s parents. 21 The State notes that the juve-
nile court concluded that B.C.’s welfare could not be ensured
without more cooperation from Joshua in creating a safety plan.
Thus, the juvenile court determined that the State had proved
that at least at the moment, Joshua was “unfit.” It denies that it
placed the burden on Joshua to prove himself fit.
The question presented in this appeal is where the net
weight lies in the balance between the State’s parens patriae
interest in protecting B.C.’s welfare and Joshua’s liberty and
privacy interests in the care, custody, and management of his
21
See, § 43-247(5); In re Interest of Devin W. et al., supra note 15; In re
Interest of Sabrina K., 262 Neb. 871, 635 N.W.2d 727 (2001).
- 841 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817child. 22 This case specifically raises questions concerning what
level of State intrusion into the rights of a noncustodial parent,
against whom no allegations have been made, is justified by
a pending adjudication of the child under § 43-247(3)(a) due
to allegations against the custodial parent and after a deter-
mination that the child would be at significant risk of harm if
maintained in the custodial parent’s home. It also raises issues
of how the noncustodial parent’s disability is treated in relation
to determining temporary custodial rights.
[8-10] The relationship between parent and child is consti-
tutionally protected and cannot be affected without procedural
due process. 23 Due process of law is the “basic and essential
term in the social compact which defines the rights of the indi-
vidual and delimits the powers which the state may exercise.” 24
But due process, “‘unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances.’” 25 The concept of due process embodies the
notion of fundamental fairness and defies precise definition. 26
Due process is flexible and calls for such procedural protec-
tions as the particular situation demands. 27
The constitutional protections in the realm of parental rights
and parens patriae responsibilities must be “elaborated with
care.” 28 In determining where the net weight lies, we must
evaluate Joshua’s interests that were at stake in the tempo-
rary placement of B.C. in foster care rather than in Joshua’s
22
See Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct.
2153, 68 L. Ed. 2d 640 (1981).
23
State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994).
24
In re Gault, 387 U.S. 1, 20, 87 S. Ct. 1428, 18 L. Ed. 527 (1967).
25
Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18(1976).
26
In re Interest of Sloane O., supra note 17.
27
Id.28
See, e.g., Troxel v. Granville, 530 U.S. 57, 101, 120 S. Ct. 2054, 147 L.
Ed. 2d 49 (2000) (Kennedy, J., dissenting).
- 842 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817home. We must determine the risk of erroneous deprivation of
such interests through the procedures used and the probable
value, if any, of additional or substitute procedural safeguards.
And we must evaluate the State’s interest in the placement
decision, including the function involved and the fiscal and
administrative burdens that additional procedural requirements
would entail. 29
[11] “[P]arents have a fundamental liberty interest in caring
for and guiding their children, and a corresponding privacy
interest—absent exceptional circumstances—in doing so with-
out the undue interference of strangers to them and to their
child”; these interests, however, “‘“do not spring full-blown
from the biological connection between parent and child.”’” 30
The “mere existence of a biological link does not merit [sub-
stantial] constitutional protection.” 31 Rather, such liberty inter-
est stems from the more enduring relationship developed upon
a biological parent’s “commitment to the responsibilities of
parenthood.” 32 If the parent fails to grasp the opportunity to
develop a relationship with the parent’s offspring and does not
accept “some measure of responsibility for the child’s future,”
“the Federal Constitution will not automatically compel a
State to listen to his opinion of where the child’s best inter-
ests lie.” 33
[12] The U.S. Supreme Court has held that an unwed bio-
logical father who has grasped the opportunity to establish
29
See, Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982); Lassiter v. Department of Social Services, supra note 22; Mathews
v. Eldridge, supra note 25.
30
Troxel v. Granville, supra note 28, 530 U.S. at 87 (Stevens, J., dissenting).
See, also, e.g., Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88
L. Ed. 645 (1944); In re Interest of Enyce J. & Eternity M., supra note 1.
See, also, State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182(2020).
31
Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614(1983).
32
Id.33
Id., 463 U.S. at 262.
- 843 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817a familial relationship with his biological child has an inter-
est in personal contact with his child, which interest is given
substantial protection under the Due Process Clause of the
14th Amendment. 34 “The private interest . . . of a man in the
children he has sired and raised, undeniably warrants deference
and, absent a powerful countervailing interest, protection.” 35 It
has been established both that Joshua is B.C.’s biological father
and that he has cared for and supported B.C. throughout most
of B.C.’s life. Joshua is also B.C.’s legal father by virtue of the
acknowledgment of paternity. Under these facts, Joshua has a
fundamental liberty interest in the care, custody, and manage-
ment of B.C. that is entitled to substantial protection under the
Due Process Clause of the 14th Amendment.
[13] The State has an interest in the placement of B.C. that
is derived from its role as parens patriae. 36 That interest is also
important. 37 Parens patriae means, in essence, that the State has
a right to protect the welfare of its resident children. 38 When
parental control fails, the State must play its part as parens
patriae. 39 The State has an interest in determining the status
and custody that will best meet the child’s needs and wants,
which is invoked both in proceedings under the juvenile code
and when the State must adjudicate custody rights as between
two parents. 40
34
See, e.g., Lehr v. Robertson, supra note 31; In re Adoption of Corbin J.,
278 Neb. 1057, 775 N.W.2d 404 (2009).
35
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551(1972).
36
In re Interest of Enyce J. & Eternity M., supra note 1.
37
See In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).
38
In re Interest of Karlie D., supra note 3.
39
See In re Interest of S.R., D.R., and B.R., 239 Neb. 871, 479 N.W.2d 126(1992).
40
See, e.g., Copple v. Copple, 186 Neb. 696, 185 N.W.2d 846 (1971);
State ex rel. Cochrane v. Blanco, 177 Neb. 149, 128 N.W.2d 615 (1964);
Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962); In re
Application of Reed, 152 Neb. 819, 43 N.W.2d 161 (1950); In re Interest
of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).
- 844 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817When called upon, the State, through the juvenile court,
merely performs its duty of seeing that the child was properly
cared for. 41 The juvenile court is a product of the solicitude of
the law for the welfare of infants. 42 Its powers and duties are
described in detail in our statutes, and because of their humani-
tarian and beneficent purpose, these statutes should be liber-
ally construed to the end that their manifest purpose may be
effectuated to the fullest extent compatible with their terms. 43
Neb. Rev. Stat. § 43-246 (Supp. 2019) provides in relevant part
that the juvenile code shall be construed to ensure the rights of
all children to care and protection and a safe and stable living
environment, “with due regard to parental rights.”
[14-16] The “‘rights of parenthood,’” even of a fit ­parent,
are not “‘beyond limitation’” 44 by the State’s powers and duties
as parens patriae. Thus, for example, the State may impose
through laws of neutral and general applicability certain educa-
tional requirements, restrictions on child labor, and compulsory
vaccination, even when against the parents’ ­wishes. 45 But, as
the U.S. Supreme Court has explained, the “State registers
no gain towards its declared goals when it separates children
from the custody of fit parents.” 46 Where a child is cared for
by a fit parent, the State’s interest in caring for the child is
“de minimis.” 47 “[T]he State cannot presume that a child and
his parents are adversaries.” 48 Only the paramount interest
41
See DeBacker v. Brainard, 183 Neb. 461, 161 N.W.2d 508 (1968).
42
Stewart v. McCauley, 178 Neb. 412, 133 N.W.2d 921 (1965).
43
See id.44
Douglas Cty. v. Anaya, 269 Neb. 552, 560, 694 N.W.2d 601, 607 (2005),
quoting Prince v. Massachusetts, supra note 30. See, also, Copple v.
Copple, supra note 40; State ex rel. Cochrane v. Blanco, supra note 40;
Meyerkorth v. State, supra note 40.
45
See, e.g., Prince v. Massachusetts, supra note 30; Douglas Cty. v. Anaya,
supra note 44.
46
Stanley v. Illinois, supra note 35, 405 U.S. at 652.
47
Id., 405 U.S. at 657 (emphasis omitted).
48
Santosky v. Kramer, supra note 29, 455 U.S. at 760.
- 845 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817which the public has in the protection of the rights of the child
can subjugate the rights of parents to maintain custody of
their children. 49
Due to the allegations against the mother, the State has been
called upon to play its role as parens patriae for B.C. And dur-
ing proceedings under § 43-247(3)(a), the juvenile court has
broad jurisdiction regarding placement. 50 B.C. was removed
from his mother’s home upon probable cause that he was
seriously endangered in his surroundings and that immediate
removal was necessary for his protection. 51 B.C. remained in
DHHS’ continuing temporary physical custody pending adju-
dication in accordance with the juvenile code’s requirement
that the court find that being placed back in the mother’s
home would be contrary to B.C.’s health, safety, or welfare. 52
But aside from its general mandate that due regard be given
to parental rights, 53 the juvenile code’s provisions governing
physical custody pending disposition do not specifically con-
template situations where only one parent resides in the home
from which the child was removed.
[17-19] We have 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 dispo-
sition is limited by Nebraska’s “parental preference doctrine,”
which governs the rights of the other parent against whom no
allegations have been made. 54 The parental preference doctrine
holds that in a child custody controversy between a biologi-
cal parent and one who is neither a biological nor an adoptive
parent, the biological parent has a superior right to the custody
49
See In re Interest of Sloane O., supra note 17.
50
See, e.g., In re Interest of Karlie D., supra note 3.
51
See § 43-248.
52
See Neb. Rev. Stat. § 43-254 (Cum. Supp. 2018).
53
§ 43-246(2).
54
See In re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 233, 922
N.W.2d 739, 746 (2019).
- 846 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817of the child. 55 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 natural right
to the custody of a child requires that a parent be presump-
tively regarded as the proper guardian. 56 Only exceptional
circumstances involving proof of serious physical or psycho-
logical 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 prefer-
ence doctrine. 57
Thus, in In re Interest of Sloane O., 58 we held that due proc­
ess protected the custody rights of a mother whose child had
been adjudicated due to the faults or habits of the father, which
rights were “subject only to the State’s interest in protecting
[the child] from harm.” 59 In considering the mother’s motion
for temporary custody, we held that the juvenile court should
have presumed under the parental preference doctrine that the
mother was the best person to parent the child unless and until
the State affirmatively demonstrated otherwise. 60
The mother in In re Interest of Sloane O. had been physi-
cally separated from the father, and a divorce action was
pending. We held that evidence that the mother had previously
witnessed incidents of the father’s chaining the child to a
couch was insufficient to meet the State’s burden to prove the
mother unfit and overcome parental preference. 61 We reversed
55
Id.56
See, e.g., In re Interest of Sloane O., supra note 17; In re Interest of
Jaydon W. & Ethan W., 25 Neb. App. 562, 909 N.W.2d 385 (2018); In re
Interest of Miah T. & DeKandyce H., 23 Neb. App. 592, 875 N.W.2d 1(2016); In re Interest of Stephanie H. et al., supra note 40.
57
See State on behalf of Tina K. v. Adam B., supra note 30.
58
In re Interest of Sloane O., supra note 17.
59
Id. at 903, 870 N.W.2d at 118.
60
See id.
61
See In re Interest of Sloane O., supra note 17.
- 847 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the juvenile court’s denial of the mother’s motion for custody
and remanded the cause for further proceedings to consider
the most up-to-date information regarding the child. 62
The Court of Appeals, in In re Interest of Stephanie H. et
al., 63 held similarly when it reversed the juvenile court’s order
denying the noncustodial mother’s motion for placement after
her children had been removed from the custodial father’s
home under allegations of sexual abuse. The Court of Appeals
held that fundamental fairness demanded that the mother “be
given prompt notice of any allegations against her which the
State or [DHHS] contends make placement of her children with
her contrary to the children’s best interests.” 64 The burden of
proof was thereafter upon the State to overcome the parental
preference doctrine.
Evidence in In re Interest of Stephanie H. et al. that the
mother was living with a man for the preceding 6 months,
knowing he was on “‘work release’” 65 but not knowing
whether he had a criminal record, did not “remotely resembl[e]
an affirmative showing” 66 that the mother was unfit or that
she had forfeited her parental rights. The State had neither
alleged nor proved that the mother should not have custody
of her children. 67 The Court of Appeals reversed the order
of the juvenile court and remanded the cause with directions
to place the children with the mother pending adjudication.
The court noted, however, that its mandate did not preclude
the State from coming forward in the future “with allegations
and proof that [the mother was] not a fit custodial parent of
her children.” 68
62
See id.63
In re Interest of Stephanie H. et al., supra note 40.
64
Id. at 921-22, 639 N.W.2d at 680.
65
Id. at 913, 639 N.W.2d at 674.
66
Id. at 924, 639 N.W.2d at 682.
67
In re Interest of Stephanie H. et al., supra note 40.
68
Id. at 926, 639 N.W.2d at 683.
- 848 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817Likewise, in In re Interest of Jaydon W. & Ethan W., 69 the
Court of Appeals reversed the juvenile court’s denial of the
noncustodial father’s motion for custody in ongoing proceed-
ings for a child adjudicated due to the fault or habits of the
custodial mother. DHHS had objected to the father’s custody
based on regression in the children’s behavior after visita-
tion and a protection order that had expired approximately 11⁄2
years earlier. The juvenile court indicated custody would be
revisited after DHHS completed further assessments ordered
by the court. But, relying on the parental preference doctrine,
the Court of Appeals described that the initial question must be
whether the presumption that the children’s best interests are
served by reuniting them with their father has been rebutted
by clear and convincing evidence that the father is unfit or has
forfeited his right to custody. The Court of Appeals found that
it had not.
While the Court of Appeals expressed in In re Interest of
Jaydon W. & Ethan W. that it understood the juvenile court’s
“reluctance to uproot the children from their long-term foster
home, especially given their recent behavioral concerns,” 70
it held that the father’s right to custody could be “disrupted
only upon a finding that he is unfit or has forfeited his right
to custody.” 71 Still, the Court of Appeals explained that the
juvenile court was not required to “order the children be turned
over to [the father] immediately.” 72 It was constitutionally
permissible and in the children’s best interests to implement a
transition plan. The Court of Appeals remanded the cause with
directions for the court to do so.
[20] Our case law is clear that when the allegations of a
petition for adjudication invoking the jurisdiction of the juve-
nile court are against one parent only, the State cannot deny
69
In re Interest of Jaydon W. & Ethan W., supra note 56.
70
Id. at 576, 909 N.W.2d at 396.
71
Id.
72
Id. at 576-77, 909 N.W.2d at 397.
- 849 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the 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.
[21] We note, however, that the State is not required to
grant a nonoffending biological parent’s request for custody
before confirming that the parent has actually acquired con-
stitutionally protected parental status. We observe that in In
re Interest of Sloane O. and In re Interest of Stephanie H.
et al., the custody and visitation rights of the nonoffending
parent had been adjudicated by the district court. 73 Because
parental preference derives not simply from biology but from
the enduring relationship developed upon a biological parent’s
commitment to the responsibilities of parenthood, children
removed from their homes due to the fault or habits of one
parent need not immediately and without some minimal inves-
tigation be placed with the other biological parent whose status
as having “an actual relationship of parental responsibility” 74
is unknown. Only once that relationship is established does
such a parent who wishes for temporary physical custody
during the pendency of juvenile proceedings have a parental
preference that cannot be denied without notice and an affirm­
ative showing by a preponderance of the evidence 75 that the
parent is unfit or has forfeited the parental relationship or that
an exceptional circumstance of serious physical or psycho-
logical harm to the child or a substantial likelihood of such
harm exists.
[22-24] Furthermore, as the Court of Appeals recognized
in In re Interest of Jaydon W. & Ethan W., due process is
73
In re Interest of Sloane O., supra note 17; In re Interest of Stephanie H. et
al., supra note 40.
74
Lehr v. Robertson, supra note 31, 463 U.S. at 260.
75
In re Interest of R.G., supra note 6.
- 850 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817“flexible,” 76 not “‘a fixed content unrelated to time, place
and circumstances.’” 77 Accordingly, the nonoffending parent’s
exercise of the parental preference of custody is not entirely
unfettered during the juvenile court’s continuing jurisdiction
under the juvenile code. The juvenile court, in the exercise of
its parens patriae responsibilities, may develop a transition plan
constituting a reasonable intrusion of limited duration into the
nonoffending parent’s rights to autonomy in the care and cus-
tody of the child. Likewise, it does not violate due process for
the juvenile court in its determination of the child’s best inter-
ests and in its role as adjudicator of the custody rights between
two parents to require the nonoffending parent’s cooperation
with goals of reunification back into the home from where the
child was taken. 78 After all, the parental preference doctrine
serves no role in determining the custody rights between two
biological or legal parents.
[25-27] It was established at the hearing on Joshua’s motion
for placement that he is a parent entitled to substantial protec-
tion under the Due Process Clause of the 14th Amendment.
Yet, there was never a formal allegation placing Joshua on
notice that he would have to defend against an attempt by the
State to prove he had lost the presumption of parental prefer-
ence. Procedural due process generally requires that notice be
given of such a nature as to reasonably convey the required
information. 79 In the context of denying parental preference in
a placement decision during proceedings under § 43-247(3)(a),
reasonable notice must include the factual bases for seek-
ing to prove that the parent is unfit or has forfeited parental
76
In re Interest of Jaydon W. & Ethan W., supra note 56, 25 Neb. App. at
572, 909 N.W.2d at 394.
77
Mathews v. Eldridge, supra note 25, 424 U.S. at 334.
78
See Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare
System’s Disregard for the Constitutional Rights of Nonoffending Parents,
82 Temple L. Rev. 55 (2009).
79
See Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94
L. Ed. 865 (1950).
- 851 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817rights or that exceptional circumstances exist involving serious
­physical or psychological harm to the child or a substantial like-
lihood of such harm. 80 While as to the parent from whose home
the child was removed, such notice is ordinarily contained in
the petition for adjudication, 81 allegations as to the fault or hab-
its of the custodial parent do not operate to give notice to the
noncustodial parent that the State seeks to rebut that parent’s
right to parental preference in its placement decisions.
We agree with Joshua that because he was not given notice
that his fitness, forfeiture, or exceptional circumstances were
to be adjudicated at the hearing on his motion for placement,
the juvenile court could not properly deprive him of his right
to custody under the parental preference doctrine. The court
found Joshua unfit, but without specific allegations of unfit-
ness. The court violated Joshua’s rights to procedural due
process. Without a proper adjudication that the State had rebut-
ted Joshua’s parental preference by a preponderance of the
evidence, the parental preference doctrine required temporary
placement of B.C. with Joshua, who has developed an enduring
relationship with B.C. and has committed to the responsibilities
of parenthood. We therefore reverse the district court’s order
denying Joshua’s motion for placement on procedural due
process grounds and remand the cause with directions to grant
Joshua temporary physical placement after establishing, with
the most up-to-date information, an appropriate plan for B.C.’s
transition into Joshua’s temporary physical custody.
Granting Joshua’s motion for temporary physical placement
does not mean that the juvenile court lacks any authority over
B.C. and Joshua. 82 At the time of B.C.’s removal, the mother
was the de facto custodial parent, and the State’s current goal
is reunification with her and placement back into the home
B.C. was removed from. Joshua has not sought custody in
80
See id.81
See In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
82
See, § 43-247(3) and (5); In re Interest of Devin W. et al., supra note 15.
- 852 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817district court or through a bridge order 83 in juvenile court.
The juvenile court has the power to require cooperation with
orders of visitation with the mother and its reunification plan.
Temporary physical custody with a noncustodial parent ought
not create a “substantial and unnecessary hindrance to efforts
of reunification” with the custodial parent. 84 Furthermore, a
plan for B.C.’s welfare during the transition from his foster
placement to Joshua’s care is an appropriate exercise of the
State’s parens patriae jurisdiction so long as the plan is a tem-
porary and minor intrusion into Joshua’s parental rights.
We note that on remand, the State is free to attempt to prop-
erly plead factual bases for an allegation that Joshua is unfit and
again try to prove that placement with Joshua is not required
under the parental preference doctrine. Parents have no double
jeopardy defense against repeated efforts by the State to modify
temporary placement during a juvenile proceeding. 85 Therefore,
in order to provide guidance for an issue that is likely to resur-
face on remand, we discuss the lower court’s approach to its
fitness determination for Joshua, who is currently experiencing
a physical disability. It appears that the State and the juvenile
court were operating under the wrong standards.
Instead of evaluating whether the State had affirmatively
proved Joshua unfit, the juvenile court seemed to shift the
burden onto Joshua to prove himself fit. The court con-
cluded that Joshua’s lack of “cooperation” in allaying “con-
cerns” rendered him unfit. But the “concerns” described did
not themselves establish unfitness. Rather, they were ques-
tions about how Joshua, wheelchair bound, would be able
to address hypothetical scenarios that may or may not arise.
The court and DHHS were worried about Joshua’s testimony
that he required assistance from home health care aides in
83
See Neb. Rev. Stat. § 43-246.01 (Reissue 2016).
84
In re Interest of Ethan M., 15 Neb. App. 148, 158, 723 N.W.2d 363, 371
(2006).
85
See Santosky v. Kramer, supra note 29.
- 853 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the morning getting into his wheelchair, that he could not sit
up on his own yet, and that he did not have overnight care.
They had concerns about the fact that Joshua did not prepare
his own meals.
Joshua testified that he did not believe the lack of an over-
night caretaker would endanger B.C., and he listed ways in
which he could provide adequate food for B.C. When specific
overnight scenarios were presented to Joshua during his tes-
timony, he had adequate answers as to how he would handle
them. For example, when asked about what he would do if
there were a fire, Joshua responded that he would call the fire
department. Joshua owns a four-bedroom home in the cen-
ter of town which DHHS evaluated as being in appropriate
condition. Joshua is able to support himself and B.C. on his
disability income. Joshua has made arrangements for B.C.’s
transportation to and from school, as well as to and from any
appointments B.C. might have. While Joshua is not able to pre-
pare meals himself, he testified as to several different options
that would provide B.C. with sufficient food. B.C. lived with
Joshua up until Joshua developed Guillain-Barre syndrome,
the mother having described Joshua and B.C. as well bonded,
and Joshua described a daily routine for B.C.’s care. Joshua
described disability services, family, and members of the com-
munity he could reach out to as needed when difficult situa-
tions arise.
Still, the juvenile court, in its determination of unfitness,
relied on the lack of a written safety plan developed in cooper­
ation with DHHS that would address in more detail how B.C.
would be cared for when Joshua lacked home health care or
when B.C. would be in the home for longer periods of time.
The court had concerns about the details of how Joshua would
care for B.C. on weekends, snow days, and holidays, and how
he might address nosebleeds and fevers developed in the mid-
dle of the night. The court appeared to presume that because of
Joshua’s disability, Joshua was unfit unless he could provide
a detailed response to all of the posed hypothetical scenarios,
- 854 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817to be memorialized in a safety plan. Such a presumption
is unlawful.
[28] While not directly controlling, we note that the
Legislature has declared in Neb. Rev. Stat. § 42-364.18 (Cum.
Supp. 2018) that individuals with disabilities “continue to face
unfair, preconceived, and unnecessary societal biases as well as
antiquated attitudes regarding their ability to successfully par-
ent their children.” And in Neb. Rev. Stat. § 42-364(2) (Cum.
Supp. 2018), the Legislature declared that “no presumption
shall exist that either parent is more fit or suitable than the
other” based on either “the sex or [the] disability of the parent.”
Likewise, we hold that there is no presumption that a disabled
parent is unfit, that a disabled parent has forfeited parental
rights, or that exceptional circumstances exist involving seri-
ous physical or psychological harm to the child or a substantial
likelihood of such harm because a parent is disabled.
[29] It is conceivable that a lack of adequate accommoda-
tions could render a disabled parent unable to care for a child,
thereby affecting the State’s placement decision. However, the
simple fact that a parent is disabled does not overcome the
presumption that the parent is a better caretaker of the parent’s
own child than the State is. The lack of a detailed safety plan
to account for possible hypothetical scenarios that Joshua may
have to address differently from a parent who is not wheelchair
bound did not affirmatively prove him unfit.
The only evidence of unfitness presented at the hearing
that was not related to Joshua’s disability was a couple of
“hectic” visitations involving both B.C. and his half siblings,
“unfounded” past intakes, the mother’s description of the inci-
dent in 2015, and the mother’s general concern over exces-
sive drinking. Parental unfitness means a personal deficiency
or incapacity which has prevented, or will probably prevent,
performance of a reasonable parental obligation in child rear-
ing and which caused, or probably will result in, detriment to
a child’s wellbeing. 86 The juvenile court did not appear to rely
86
Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020).
- 855 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817on such evidence in finding Joshua unfit under that definition,
and, having reversed on procedural due process grounds, we
need not determine in this appeal whether it would have been
sufficient to sustain the State’s burden.
We appreciate the juvenile court’s concern for the welfare of
the child it has been called upon to protect due to the fault or
habits of the mother. And the State is not bound to wait until
a tragedy has befallen a child before intervention occurs upon
proof that the fault or habits of a parent present a risk of harm
to the child. 87 But no notice was provided to Joshua that his
fitness was at issue; therefore, the court erred in finding him
unfit and in denying his parental preference to physical cus-
tody, which he sought to enforce through his motion for tempo-
rary placement. In the event the State attempts again to prove
Joshua unfit after proper notice has been given, we clarify that
a physical disability does not shift the burden to the disabled
parent to prove fitness despite such disability.
4. Equal Protection
Because we reverse the December 23, 2019, order on pro-
cedural due process grounds, we need not address Joshua’s
arguments that the denial of his motion for placement violated
equal protection.
5. Jurisdiction Over Adjudication
Pending Appeal
We next address Joshua’s argument in case No. S-20-244
that his appeal from the December 23, 2019, order denying his
motion for placement deprived the juvenile court of jurisdic-
tion to accept B.C.’s mother’s plea and adjudicate B.C. due
to the fault or habits of his mother. Joshua points out that he
is a party to the case in which the adjudication order was ren-
dered and that his parental rights are affected by the adjudica-
tion order that establishes with more permanency the court’s
87
See In re Interest of M.B. and A.B., 239 Neb. 1028, 480 N.W.2d 160(1992).
- 856 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817jurisdiction and legal custody over B.C., as well as its jurisdic-
tion over Joshua pursuant to § 43-247(5).
[30] Nebraska case law generally holds that once an appeal
has been perfected, the lower court is divested of its subject
matter jurisdiction over that case. 88 However, we have held that
a juvenile court is not wholly divested of jurisdiction during
the pendency of an appeal from a final order. 89
Neb. Rev. Stat. § 43-295 (Reissue 2016), which is directly
applicable to the separate juvenile courts, states:
Except when the juvenile has been legally adopted,
the jurisdiction of the court shall continue over any
juvenile brought before the court or committed under the
Nebraska Juvenile Code and the court shall have power
to order a change in the custody or care of any such juve-
nile if at any time it is made to appear to the court that
it would be for the best interests of the juvenile to make
such change.
Additionally, state law clearly provides, through Neb. Rev.
Stat. § 43-2,106 (Reissue 2016), that in counties where there is
no separate juvenile court, the county court sitting as a juvenile
court shall continue to exercise supervision of the juvenile until
a hearing is had in the appellate court and the appellate court
enters an order making other disposition. Section 43-2,106
states in full:
When a juvenile court proceeding has been instituted
before a county court sitting as a juvenile court, the origi-
nal jurisdiction of the county court shall continue until
the final disposition thereof and no appeal shall stay the
enforcement of any order entered in the county court.
After appeal has been filed, the appellate court, upon
application and hearing, may stay any order, judgment,
88
See, e.g., State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012); Billups v.
Scott, 253 Neb. 293, 571 N.W.2d 607 (1997); Anderzhon/Architects Inc. v.
57 Oxbow II Partnership, 250 Neb. 768, 553 N.W.2d 157 (1996); Flora v.
Escudero, 247 Neb. 260, 526 N.W.2d 643 (1995).
89
See In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).
- 857 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817or decree on appeal if suitable arrangement is made for
the care and custody of the juvenile. The county court
shall continue to exercise supervision over the juvenile
until a hearing is had in the appellate court and the appel-
late court enters an order making other disposition. If
the appellate court adjudges the juvenile to be a juvenile
meeting the criteria established in subdivision (1), (2),
(3), or (4) of section 43-247, the appellate court shall
affirm the disposition made by the county court unless
it is shown by clear and convincing evidence that the
disposition of the county court is not in the best interest
of such juvenile. Upon determination of the appeal, the
appellate court shall remand the case to the county court
for further proceedings consistent with the determination
of the appellate court.
Somewhat similarly, in dissolution proceedings, Neb. Rev.
Stat. § 42-351(2) (Reissue 2016) provides that when final
orders are pending on appeal
the court that issued such orders shall retain jurisdiction
to provide for such orders regarding support, custody, par-
enting time, visitation, or other access, orders shown to be
necessary to allow the use of property or to prevent the
irreparable harm to or loss of property during the pend­
ency of such appeal, or other appropriate orders in aid of
the appeal process. Such orders shall not be construed to
prejudice any party on appeal.
In In re Interest of Jedidiah P., 90 we noted that while there
is no statute governing the separate juvenile courts which,
similarly to § 43-2,106, clearly articulates such courts’ con-
tinuing jurisdiction during the pendency of an appeal, we
could “discern no reason for a juvenile court not to retain such
authority, regardless of whether it is a county court sitting as
a juvenile court or a separate juvenile court.” Therefore, we
90
In re Interest of Jedidiah P., supra note 89, 267 Neb. at 263, 673 N.W.2d
at 557.
- 858 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817held that a separate juvenile court continues to exercise super-
vision of the juvenile during an appeal. 91
[31] The extent of the continuing jurisdiction of the sepa-
rate juvenile courts and the county courts sitting as juvenile
courts during the pendency of an appeal is not without limits
and must be determined by the facts of each case. 92 The ques-
tion is the level of supervision the separate juvenile court may
properly exercise during the pendency of the appeal, which is
governed by §§ 43-295 and 43-2,106. 93
[32] We have held that the juvenile courts’ continuing juris-
diction does not include the power to terminate a juvenile’s
relationship with the child’s parents. 94 In contrast, our courts
have found juvenile courts to have continuing jurisdiction dur-
ing the pendency of an appeal to issue an order to show cause
seeking enforcement of prior orders requiring a speech and
language assessment 95 and to order the temporary suspension
of visitation. 96 In In re Interest of Andrew H. et al., 97 the Court
of Appeals held that an order of permanent disposition during
the pendency of an appeal of an adjudication order went beyond
the court’s continuing jurisdiction to exercise supervision over
91
See id.
92
See In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017);
In re Interest of Jedidiah P., supra note 89. See, also, e.g., In re Interest of
Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006), disapproved on other
grounds, In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758(2007); In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684
N.W.2d 594 (2004).
93
In re Interest of Jedidiah P., supra note 89.
94
See id.
95
In re Interest of Becka P. et al., supra note 92.
96
In re Interest of Angeleah M. & Ava M., 23 Neb. App. 324, 871 N.W.2d 49(2015), disapproved on other grounds, In re Estate of Abbott-Ochsner, 299
Neb. 596, 910 N.W.2d 504 (2018).
97
In re Interest of Andrew H. et al., 5 Neb. App. 716, 564 N.W.2d 611(1997).
- 859 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817the juvenile; but in In re Interest of Jedidiah P., 98 we held
that the juvenile court had continuing jurisdiction during the
pendency of an appeal of the adjudication order to issue an
order of disposition changing the juvenile’s custody from the
juvenile detention center to a residential treatment center and
granting temporary legal custody of the juvenile to DHHS.
The difference was that in In re Interest of Jedidiah P., the
order of disposition was a temporary placement order, while in
In re Interest of Andrew H. et al., the court had issued a per-
manent dispositional order adopting a case plan and ordering
custody outside the home until completion.
Under the specific facts presented here, we find that the
juvenile court had continuing jurisdiction to accept the ­mother’s
plea and adjudicate B.C. while Joshua’s appeal from the order
denying his motion for placement was pending. Joshua’s reli-
ance on In re Interest of Joshua M. et al. 99 to argue otherwise
is misplaced. We held in In re Interest of Joshua M. et al. that
the juvenile court lacked jurisdiction to terminate parental
rights to three children during the pendency of appeals from
a final order of placement outside the home preadjudication
as to one child and from final orders modifying dispositional
orders to place outside the home the two other children. The
juvenile court did not proceed in this case to a termination of
parental rights.
We note that successful appeals challenging orders of adju-
dication would eliminate a juvenile court’s jurisdiction over
the juvenile and its power to issue permanent dispositional
orders, while successful appeals from temporary placement
orders would not. Neb. Rev. Stat. § 43-278 (Reissue 2016)
provides that absent a showing of good cause, an adjudication
hearing shall be held no more than 90 days after a petition is
filed. As the juvenile court noted, B.C.’s mother had an inter-
est in promptly adjudicating her children so that she could
98
In re Interest of Jedidiah P., supra note 89.
99
In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).
- 860 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817more quickly proceed to a rehabilitative plan and placement of
the children back in her care. Joshua’s appeal from the denial
of his motion for temporary placement can have no effect
on the juvenile court’s underlying jurisdiction in this case to
promptly proceed with its statutory duties. The court’s order
of adjudication was a proper exercise of the juvenile court’s
ongoing supervisory powers during the pendency of Joshua’s
appeal in case No. S-20-009. Accordingly, we hold that the
order of adjudication is not void.
6. Disqualification
Lastly, because judicial disqualification is not subject to a
harmless error analysis 100 and this is a continuing matter, we
address Joshua’s assignments of error challenging the juvenile
court judge’s impartiality. Joshua argues that the juvenile court
judge demonstrated personal bias and prejudice against him
through leading questions of Knott during the December 23,
2019, hearing and the statement in the order of adjudication
that “[t]he current goal in this case is to return the juveniles to
the custody of [their mother].”
[33] The Nebraska Revised Code of Judicial Conduct
requires that “[a] judge shall hear and decide matters assigned
to the judge, except when disqualification is required . . . .” 101
The code further states that “[a] judge shall disqualify him-
self or herself in any proceeding in which the judge’s impar-
tiality might reasonably be questioned . . . .” 102 Under the
code, such instances in which the judge’s impartiality might
reasonably be questioned specifically include where “[t]he
judge has a personal bias or prejudice concerning a party or a
party’s lawyer . . . .” 103 The issue of judicial disqualification
100
See Tierney v. Four H Land Co., 281 Neb. 658, 798 N.W.2d 586 (2011).
101
Neb. Rev. Code of Judicial Conduct § 5-302.7.
102
Neb. Rev. Code of Judicial Conduct § 5-302.11(A).
103
§ 5-302.11(A)(1).
- 861 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 307 Neb. 817is timely if submitted at the earliest practicable opportunity
after the disqualifying facts are discovered. 104
[34,35] Assuming without deciding that the question of the
juvenile court judge’s disqualification was not waived, we find
no merit to Joshua’s assertion that the juvenile court judge
should have been disqualified. There exists a presumption of
judicial impartiality, and a party alleging that a judge acted
with bias or prejudice bears a heavy burden of overcoming that
presumption. 105 A judge’s opinions based on facts presented
during a hearing, even if those opinions are stated before the
hearing’s conclusion, are not indicative of bias by the judge
unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible. 106 The juvenile court
judge’s questioning and comment simply reflected the court’s
opinions based on the facts presented at the hearings and the
judge’s understanding of the law. Under the objective standard
of reasonableness applicable to disqualification, the juvenile
court judge’s questions and comment would not cause a rea-
sonable person to question his impartiality. 107
VI. CONCLUSION
In case No. S-20-009, we reverse the December 23, 2019,
order denying Joshua’s motion for placement and remand
the cause with directions for further proceedings to develop
a transition plan. In case No. S-20-244, we affirm the order
of adjudication.
Judgment in No. S-20-009 reversed, and
cause remanded with directions.
Judgment in No. S-20-244 affirmed.
104
Tierney v. Four H Land Co., supra note 100.
105
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
106
See In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018).
107
See id.