- 1 -

IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF LONDYN H.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF LONDYN H., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

MARIO O., APPELLANT.

Filed September 12, 2023. No. A-23-150.

Appeal from the County Court for Saunders County: ANDREW R. LANGE, Judge. Affirmed.

Mark A. Steele, of Steele Law Office, for appellant.

Jennifer D. Joakim, Saunders County Attorney, for appellee.

Catrina K. Harris, of Lutton Law Office, L.L.C., guardian ad litem.

PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.

MOORE, Judge.

INTRODUCTION

Mario O. appeals from the order of Saunders County Court, sitting as a juvenile court, 

which adjudicated his minor child, Londyn H., under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 

2016). He argues that the juvenile court erred in its determination that he had failed to provide 

proper parental care and abandoned the child. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

Mario is the biological father of Londyn, born in July 2014. Londyn was removed from the 

care of her biological mother in April 2019 due to concerns regarding the mother’s drug use. 

Though an original petition relating to the mother is not included in our record on appeal, the 
- 2 -

Nebraska Department of Health and Human Services’ (the Department’s) case plan dated March 

23, 2022, states that Londyn was made a ward of the state shortly after her removal, and Londyn 

was adjudicated on August 5, 2019. Londyn’s mother is not involved in this appeal and will be 

discussed only as necessary to its resolution.

On January 10, 2023, the State filed a supplemental petition in the juvenile court, alleging 

that Londyn was within the meaning of § 43-247(3)(a). Specifically, the State alleged that Londyn 

lacked proper parental care due to Mario’s fault or habits and was at risk for harm because Mario 

was unable or unwilling to be involved in the child’s daily life and to be a constant, full-time 

parent, and failed to “sufficient discharge” his duty to exhibit a continued interest in the child, 

including financial and emotional support, and parental affiliation with the child, thereby 

abandoning the child within the meaning of § 43-247 (3)(a). Mario entered a denial to the 

allegation of the petition, and an adjudication hearing was held on January 25, 2023. The following 

evidence was adduced.

Mario testified that he and Londyn’s mother coparented Londyn in Nebraska from her birth 

in 2014 until 2016. In 2016, Mario and Londyn moved to Florida where they resided for 1 year 

until Mario moved to Trinidad to attend a master’s program and Londyn returned to Nebraska to 

live with her mother. After Mario completed his master’s program, he moved back to Nebraska 

and resumed coparenting Londyn.

A certified child support payment history was entered into evidence, reflecting that Mario 

paid a monthly obligation of $154 beginning in September 2015. Mario’s child support payments 

were suspended in May 2017 because Londyn was residing with Mario in Florida at that time. 

Mario had no payments in arrears and no subsequent child support order has been made.

On December 21, 2018, Londyn’s mother obtained an ex parte domestic abuse protection 

order in the district court of Saunders County against Mario on behalf of Londyn. In the 

accompanying affidavit, Londyn’s mother stated that Mario had yelled at Londyn to brush her 

teeth, drug Londyn by her arm about 10 feet, and “smacked” Londyn’s buttocks and thighs. The 

ex parte order awarded temporary custody of Londyn to her mother and excluded Mario from the 

mother’s residence, but did not prohibit Mario from contacting or communicating with Londyn. 

Mario requested a hearing on the protection order, but the request was denied by the district court 

because it was untimely made.

In September 2019, Londyn’s mother filed a motion to vacate and set aside the domestic 

abuse protection order, stating in her motion that Londyn’s father was no longer a danger to her. 

During a hearing on the mother’s motion to vacate, the mother withdrew her motion and the 

protection order remained in effect until December 2019.

The Department’s March 2022 case plan also stated that because Mario had hit Londyn, he 

was arrested on December 21, 2018, and “[t]here was also a no contact order in place through 

Saunders County.” However, the criminal case against Mario and the no contact order were 

dropped in September 2019.

In April 2019, Londyn was removed from her mother’s care and Mario did not receive 

legal notice of the removal. Mario moved to Florida in late 2019. Since the juvenile case began, 

Londyn has never been placed with Mario. There is little information included in our record 

regarding Mario’s involvement in the juvenile case from the time of Londyn’s removal in April 

2019 until the spring of 2022, when the Department first created a case plan for Mario.
- 3 -

Though our record does not contain a transcript from any hearing prior to the filing of the 

supplemental petition, Mario concedes that the juvenile court adopted the Department’s March 23, 

2022, and October 4 case plans. Mario’s original goals, included in the March 2022 case plan, 

were to maintain consistent contact with Londyn through virtual visitation and phone calls and to 

complete an Interstate Compact on the Placement of Children (ICPC) home study to explore 

Londyn’s placement with Mario.

Deidre Shafer, the family’s caseworker since April 2021, facilitated Mario’s virtual 

visitation beginning in March 2022. The Department offered at least 2 hours per week of virtual 

visitation supervised by a family support worker, and Mario was also allowed to call Londyn at 

her placement at any time. When Mario was participating in virtual visitation, he would 

occasionally not answer the video call. The October 2022, case plan notes that of the 11 supervised 

visits offered to Mario between March and May, he attended eight. When visits did occur, Londyn 

was engaged, and the visits went well.

Lora, Londyn’s maternal grandmother, has had placement of Londyn since December 

2021. When video visitation did not occur, Londyn would become upset and withdrawn and ask 

Lora why Mario and his family did not want to speak with her. Lora began not telling Londyn 

about virtual visits to avoid Londyn becoming upset if the visits did not happen as scheduled.

Tracy Strong was the family support worker who supervised Londyn and Mario’s virtual 

visits. Text messages exchanged between Strong and Mario from April to June 2022 and 

November to December were entered into evidence. On May 10, Mario did not attend a visit and 

informed Strong the following day that he was ill and the visit “slipped [his] mind.” That same 

day, May 11, Strong offered a visit later in the week where Mario would be able to watch Londyn’s 

T-ball practice. Mario did not respond despite Strong sending follow up text messages on May 12 

and 13. Mario and Strong resumed communicating about visits from June 10 to 13, and a virtual 

visit was scheduled for the evening of June 13 but ultimately it did not occur. Strong sent messages 

on June 14, 15, and 21, asking if Mario wanted a visit without receiving any response from Mario.

The next text message from Strong to Mario was sent on November 4, 2022. Strong 

testified that the gap in text messages from late June until early November likely reflects the 

expiration of the previous referral for supervised virtual visits and the Department creating a new 

referral. Strong and Mario exchanged messages from November 4 to December 8, but no visits 

were scheduled. Instead, Mario communicated his frustrations regarding the juvenile case to 

Strong.

On November 6, 2022, Mario sent a text message to Strong stating, “[i]t’s my job as a 

parent not to let anyone unlawfully take my child and then submit to demands just to reunify with 

my child.” Strong responded that she would want to visit with her child as often as possible and 

observed that the situation was most unfortunate for Londyn, and Mario did not reply. In another 

text message, on November 14, Mario told Strong that he has “custodial rights to my biological 

child that are being completely ignored . . . please stop trying to coheres [sic] me [into attending 

visits].” After Strong sent Mario three text messages offering virtual visitation on November 23, 

December 1, and December 8, Mario messaged Strong on December 8, “this is harassment.”

Strong testified that the Department’s most recent referral instructs family support to 

continue reaching out to Mario weekly until the end of March 2023. Strong has not received a 
- 4 -

response since November 2022. Strong has not supervised a virtual visit between Londyn and 

Mario since the spring of 2022.

Lora testified to communications Mario had with Londyn outside of virtual visits through 

the Department. Lora recalled a phone call Mario made to Londyn in the summer of 2022, the day 

after her birthday, as well as three text message exchanges between Mario and Londyn in August, 

November, and December. Screenshots of the text messages were entered into evidence. In the 

text messages, Mario discusses Londyn moving to Florida, statements made in court, and how 

Mario was going to “win” the juvenile case. Mario also placed eight video calls to Londyn in July 

and August, though it is unclear from our record whether these calls were answered and how long 

they lasted. Shafer was concerned about Mario having inappropriate conversations with Londyn, 

specifically talking with Londyn about moving to Florida when her change of placement had not 

yet been approved by the Department or juvenile court.

The March 2022 case plan reflects Mario’s resistance to participating in a prior ICPC. The 

case plan states that in March 2020, an ICPC request was sent to Florida and Mario refused to 

participate because he did not need to prove his home was safe for Londyn as there were no 

allegations against him in the juvenile case at that time. Due to Mario’s lack of cooperation, this 

prior ICPC was denied by the state of Florida. The second ICPC was completed by Florida social 

services in August 2022.

Shafer testified that Londyn is currently seeing a therapist due to trauma caused by 

witnessing domestic violence in the home and her removal, and has been diagnosed with 

generalized anxiety disorder. Londyn’s therapist recommended that Mario attend 10 sessions of 

individual therapy and then participate in family therapy with Londyn to help manage Londyn’s 

anxiety. The family therapy recommendation was also made to help Mario understand how his 

inconsistency affects Londyn. The October 2022 case plan details a report from Londyn’s therapist 

in which she states that Londyn “is increasingly hurt by the lack of parental involvement followed 

by promises to reconnect with either parent.” Londyn also had been exhibiting negative behaviors 

and making suicidal statements in school. The therapist attributed this to Londyn’s “constant 

frustration of attempting to regulate her parents.”

In the October 2022 case plan, Shafer included a third goal for Mario; to enhance Mario’s 

parenting skills by attending supervised visitation, and participating in virtual family support 

services, a parenting class, individual therapy, and a parenting assessment. Shafer added the items 

to the case plan after speaking with Londyn’s therapist and guardian ad litem and developing a 

transition plan to prepare Mario for possible placement of Londyn. Shafer believed this transition 

plan was in Londyn’s best interests. As of trial, Mario had not participated in family support or a 

parenting class, despite referrals being made for the services. Shafer asked Mario for an update on 

individual therapy and the parenting assessment and did not receive a response.

Shafer described Mario’s contact with Londyn as minimal. Mario told Shafer that the 

reason he was not participating in supervised visitation or family support services was because the 

ICPC had been approved and he did not feel he needed to participate in any further services. Mario 

also testified that due to the approval of his ICPC application, he had moved the juvenile court to 

dismiss the matter or transfer jurisdiction to Florida. This motion does not appear in our record on 

appeal. Mario testified that he would be able to provide a safe and secure home for Londyn and 
- 5 -

that having placement of Londyn would be in the child’s best interests. Mario stated that he has 

been prohibited from having contact with Londyn due to the pending juvenile case.

Mario acknowledged that even with the suspension of the previous child support order, he 

should still financially support Londyn. However, Mario stated that he was told by the Department 

to stop sending Londyn money directly. Mario has purchased clothing and gifts for Londyn but 

has kept the items in his home rather than send the items to her. Lora testified that she had received 

no gifts for Londyn on behalf of Mario and Shafer was not aware of Mario giving gifts or providing 

any financial support to Londyn’s care.

Lora testified that since December 2021, Mario has not had an in person visit with Londyn 

despite being in Lincoln, Nebraska, a few weeks prior to attend the hearing on the supplemental 

petition. Mario testified that though he had considered reaching out to Londyn when he was in 

Nebraska, he did not, because of his flight arrangements and the amount of travel time from 

Lincoln to Wahoo, Nebraska, compared to the short amount of time he would be in the state. 

Additionally, Mario does not trust the Department because he has “watched things happen that’s 

not reported,” and so was skeptical about the Department supervising his in person visit with 

Londyn. Mario did not contact Lora or Londyn while he was in Nebraska.

Shafer concluded that Mario was unable or unwilling to participate in the case plan and 

that the Department could not recommend reunifying Mario with Londyn due to his lack of case 

participation. Based on Shafer’s interactions with Mario since she became the family’s 

caseworker, she did not believe that Mario’s level of participation in the case would change.

Mario testified that he has told the Department that they “had no legal reason to be able to 

tell me to do anything . . .” Mario also described himself as actively involved with the juvenile 

case. Mario stated that only his skepticism toward the Department was preventing him from 

contacting Londyn daily. When asked if he had been acting like a full-time parent, Mario 

responded that he had been “prohibited from being a full-time parent.”

In an order filed on January 26, 2023, the juvenile court found the allegation of the 

supplemental petition to be true and determined, by a preponderance of the evidence, that Londyn 

and Mario came within the meaning of § 43-247(3)(a) and under the jurisdiction of the court.

Mario appeals.

ASSIGNMENT OF ERROR

Mario assigns that the juvenile court erred in finding that he had failed to provide parental 

support and affiliation for Londyn, and thereby conferring jurisdiction over Mario and Londyn.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its conclusions 

independently of the juvenile court’s findings. When the evidence is in conflict, however, an 

appellate court may give weight to the fact that the juvenile court observed the witnesses and 

accepted one version of facts over another. In re Interest of Mateo L. et al., 309 Neb. 565, 961 

N.W.2d 516 (2021).
- 6 -

ANALYSIS

Mario asserts that the juvenile court erred in finding that he had abandoned Londyn within 

the meaning of § 43-247(3)(a). Mario also contends that the juvenile court erred by conferring its 

jurisdiction over him and Londyn. As a part of this assigned error, Mario contends that he was the 

nonoffending parent in connection with the original adjudication of Londyn in her mother’s case.

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. In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020). 

The rights of parenthood, even of a fit parent, are not beyond limitation by the State’s powers and 

duties as parens patriae. Id. 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. Id. 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 custody of the child. Id.

Though Mario was the nonoffending parent at the time Londyn was adjudicated under the 

original petition relating to her mother, the juvenile court properly ordered Mario to comply with 

the transition plan created by the Department in tandem with Londyn’s therapist and guardian ad 

litem. Mario was ordered to attend supervised virtual visitation and to participate in family support 

services, a parenting class, individual therapy, and a parenting assessment. Mario largely failed to 

participate in any of these services other than attending virtual visitation, which he attended from 

March to May 2022.

Mario’s communications with Londyn have been inconsistent throughout 2022. Mario 

attended eight of the 11 offered supervised virtual visits in the spring of 2022 but did not respond 

to the family support worker’s repeated attempts to schedule virtual visits throughout the 

remainder of the year. Mario’s text messages to the family support worker are hostile and 

defensive, despite the worker’s suggestion that Londyn would be negatively affected by Mario’s 

refusal to attend virtual visitation. Mario called Londyn through her placement once in the summer 

of 2022. Mario also text messaged with Londyn directly in August, November, and December, 

and placed eight video calls to her cell phone in July and August. Many of Mario’s text messages 

to Londyn discussed the juvenile case.

Mario’s indifference to Londyn was particularly apparent when Mario did not see Londyn 

in January 2023 when he traveled from Florida to Lincoln, Nebraska, to attend the hearing on the 

supplemental petition. Mario testified that he did not arrange for an in person visit with Londyn 

because he would not be in the state for very long and he would have had to travel from Lincoln 

to Wahoo, which is a distance of less than 35 miles. Not only did Mario not visit Londyn at her 

placement, but he did not make arrangements with Lora or Shafer to have Londyn brought to 

Lincoln so that he could see Londyn after the hearing. Mario had not seen his daughter in person 

since December 2021.

Section 43-247(3)(a) provides the juvenile court with jurisdiction over any juvenile “who 

is abandoned by his or her parent, guardian, or custodian”; and “who lacks proper parental care by 

reason of the fault or habits of his or her parent, guardian, or custodian.” While the State need not 

prove that the child has actually suffered physical harm, Nebraska case law is clear that at a 
- 7 -

minimum, the State must establish that without intervention, there is a definite risk of future harm. 

In re Interest of Draygon W. et al., 31 Neb. App. 400, 980 N.W.2d 648 (2022). The State must 

prove such allegations by a preponderance of the evidence. Id.

In Nebraska, the rights of the parent and the child are protected by the separate adjudication 

and dispositional phases of the dependency proceeding. In re Interest of Lilly S. & Vincent S., 298 

Neb. 306, 903 N.W.2d 651 (2017). A petition brought under § 43-247(3)(a) is brought on behalf 

of the child, not to punish the parents. The purpose of the adjudication phase of the proceeding is 

to protect the interests of the child; the purpose of the dispositional phase is to determine placement 

and the rights of the parties in the action. Id. It is not improper for the court to sustain jurisdiction 

at the adjudication phase if the State establishes a lack of proper parental care in the child’s present 

living situation. Id.

Here, the grounds alleged in the supplemental petition, which the juvenile court found were 

proved by sufficient evidence, included that Londyn lacked proper parental care due to Mario’s 

fault or habits as Mario was unable or unwilling to be involved in the child’s daily life and to be a 

constant, full-time parent, and fails to “sufficient[ly] discharge” his duty to exhibit a continued 

interest in the child; thereby abandoning Londyn and placing her at risk for harm. Mario argues 

that his communication with Londyn and efforts to have her placed with him demonstrates his 

intent to parent Londyn, and the State failed to show that his actions placed Londyn at risk of harm. 

We disagree.

As we have discussed above, Mario has been inconsistent with his communication with 

Londyn. This inconsistency has greatly impacted Londyn’s mental health. When Mario did not 

attend virtual visitation, Londyn was saddened to the point that Lora stopped telling Londyn when 

visitation was scheduled to occur in case the visits did not take place. Londyn’s therapist has 

reported to the Department that Londyn is hurt by the lack of parental involvement in her life and 

that Mario’s inconsistency has led to Londyn’s negative behaviors and making suicidal statements 

at the age of 8. The recommendation by Londyn’s therapist that Mario participate in individual 

therapy and later family therapy was made so that Mario would be equipped to support Londyn’s 

generalized anxiety disorder. Not only has Mario been contributing to Londyn’s distress through 

his lack of contact, but Mario also refused to participate in a service designed to ameliorate 

Londyn’s mental health diagnoses. This places Londyn at risk of harm.

Finally, although the evidence shows that Mario has been a part of Londyn’s life in some 

respect, he has not provided the consistent care and support of a parent. Throughout the case Mario 

has blamed the Department and the juvenile court for not allowing him to act as a full-time parent 

to Londyn. However, it is Mario who is not consistently communicating with his daughter or 

participating in court-ordered services for her benefit. After a de novo review of the record, we 

find that the evidence shows by a preponderance that Mario has abandoned Londyn for the purpose 

of § 43–247(3)(a) in failing to provide Londyn with proper support and parental care and that the 

juvenile court did not err in adjudicating Londyn under that statute.
- 8 -

CONCLUSION

Upon our de novo review of the evidence, we find that the State proved the allegations in 

the supplemental petition by a preponderance of the evidence. Accordingly, the juvenile court 

properly took jurisdiction over Londyn and Mario.

AFFIRMED.