- 817 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 307 Neb. 817

In 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 requirements 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; 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.

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 matter involved.

7. Juvenile Courts: Jurisdiction. 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 Neb. Rev. Stat. § 43-247 (Reissue 2016).

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/15/2021 01:08 AM CST
- 818 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 307 Neb. 817

8. 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 fundamental 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 biological 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 biological 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 custody controversy between a biological parent and one who is neither a 

biological nor an adoptive parent, the biological parent has a superior 

right to the custody of the child.

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 presumptively regarded as the proper guardian.

19. Parental Rights: Child Custody: Proof. Only exceptional circumstances involving proof of serious physical or psychological harm to the 

child or a substantial likelihood of such harm will negate the superior 

right of a fit parent who has not forfeited parental rights to custody 

under the parental preference doctrine.

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. 817

the juvenile court are against one parent only, the State cannot deny 

the other parent’s request for temporary physical custody in lieu of a 

foster care placement unless it pleads and proves by a preponderance 

of the evidence that the other parent is unfit or has forfeited custody 

or that there are exceptional circumstances involving serious physical or 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 parenthood, children removed from their homes due to the fault or habits of 

one parent need not immediately and without some minimal investigation 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 constituting 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 cooperation 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 substantial 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 placement decisions.
- 820 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 307 Neb. 817

28. 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 juvenile’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 prejudice bears a heavy burden of overcoming that presumption.

35. Judges: Recusal. 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.

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. 817

Heavican, 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-yearold 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 allegations 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 concerns 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 preponderance 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 jurisdiction of the juvenile court based upon filing dates and scrivening 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 adjudication 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. 817

II. 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 consolidated 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 children, 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 immediate 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. 817

Freyermuth 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, terroristic threats, and use of a weapon to commit a felony.

Freyermuth averred that the children were in such condition 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 pursuant 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 affidavit. Joshua was not identified.

The court found in the ex parte order that DHHS could, 

at its discretion, return the children home pending the placement 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. 817

attorney 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 petition 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. 817

given 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 separation 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 acknowledgment 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. 817

November 21 hearing. There was no evidence of an adjudication 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 testified that he had seen B.C. only twice since returning home, 

during two weekend visits arranged with B.C.’s current placement 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 GuillainBarre 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. 817

the 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 approximately 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. 817

the 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 consistent. 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 paternity 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. 817

court 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 inspection 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, placement 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 something that was in place so that it would allow us to move forward 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. 817

finding individuals that are willing [and] able to assist him 

with the placement to make sure that it can be done effectively, 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 potential caretakers.

Since the November 21, 2019, hearing, Knott and a caseworker 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 allegations 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. 817

that regard.” Finally, the court asked several questions of Knott 

regarding DHHS’ requirements, responsibilities, and expectations once a child becomes a state ward. Knott affirmed that 

DHHS felt a responsibility to be able to follow up on placements, going to the home at least once a month for private conversations 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 parent 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. 817

not 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 “argumentative 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 preference doctrine. The court stated that based on the evidence presented, 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 cooperation 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. 817

5. February 27, 2020, Order 

of Adjudication

Subsequently, the juvenile court held a hearing on adjudication. Joshua objected to the hearing on the ground that his pending 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 rehabilitative 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 temporary 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 relation 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. 817

In 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. 817

of 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 proceeding. 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 subsequent 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. 817

order 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 placement 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 temporary 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 applicability 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 opportunity to appeal its determination of that issue. The December 

23 order was final under § 25-1902(1)(b), and we have jurisdiction 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. 817

so 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 custody 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 juvenile 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 allegedly 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 hearing 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. 817

order 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 ability 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. 817

even inadequacies in the petition pertaining to parental notice 

do not divest the juvenile court of its subject matter jurisdiction. 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 juvenile 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 placement of B.C. while the juvenile case brought under the petition 

for adjudication under § 43-247(3)(a) remains open. We proceed 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 affirmatively 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 elaborates that procedural due process requires that the noncustodial 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. 817

preference. 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 dutifully exercise its parens patriae responsibility to ensure B.C.’s 

welfare wherever he is placed. And the juvenile code contemplates jurisdiction over not only the child described therein, but 

also over such child’s parents. 21 The State notes that the juvenile 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. 817

child. 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 determination 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 constitutionally 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 individual 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 protections 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 temporary 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. 817

home. 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 without 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 [substantial] constitutional protection.” 31 Rather, such liberty interest 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 interests lie.” 33

[12] The U.S. Supreme Court has held that an unwed biological 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. 817

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. 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 management 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. 817

When 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 humanitarian and beneficent purpose, these statutes should be liberally 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 educational 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. 817

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. 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 during 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 adjudication 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 contemplate 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 disposition 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 biological 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. 817

of 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 presumptively regarded as the proper guardian. 56 Only exceptional 

circumstances involving proof of serious physical or psychological harm to the child or a substantial likelihood of such 

harm will negate the superior right of a fit parent who has not 

forfeited parental rights to custody under the parental preference doctrine. 57

Thus, in In re Interest of Sloane O.,

 58 we held that due process 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 physically 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. 817

the 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. 817

Likewise, 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 proceedings 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 visitation 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 juvenile 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. 817

the other parent’s request for temporary physical custody in 

lieu of a foster care placement unless it pleads and proves by 

a preponderance of the evidence that the other parent is unfit 

or has forfeited custody or that there are exceptional circumstances involving serious physical or 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 constitutionally 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 investigation 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 affirmative 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 psychological 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 custody of the child. Likewise, 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 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 protection 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 preference. 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 seeking 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. 817

rights or that exceptional circumstances exist involving serious 

physical or psychological harm to the child or a substantial likelihood 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 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 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 unfitness. The court violated Joshua’s rights to procedural due 

process. Without a proper adjudication that the State had rebutted 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. 817

district 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 temporary and minor intrusion into Joshua’s parental rights.

We note that on remand, the State is free to attempt to properly 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 resurface 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 concluded that Joshua’s lack of “cooperation” in allaying “concerns” rendered him unfit. But the “concerns” described did 

not themselves establish unfitness. Rather, they were questions 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. 817

the 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 overnight 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 testimony, 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 center 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 prepare 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 community he could reach out to as needed when difficult situations arise.

Still, the juvenile court, in its determination of unfitness, 

relied on the lack of a written safety plan developed in cooperation 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 middle 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. 817

to 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 parent 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 serious 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 accommodations 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 incident in 2015, and the mother’s general concern over excessive drinking. Parental unfitness means a personal deficiency 

or incapacity which has prevented, or will probably prevent, 

performance of a reasonable parental obligation in child rearing 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. 817

on 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 custody, which he sought to enforce through his motion for temporary 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 procedural 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 jurisdiction 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 rendered and that his parental rights are affected by the adjudication 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. 817

jurisdiction and legal custody over B.C., as well as its jurisdiction 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 juvenile 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 original 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. 817

or 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 appellate 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, parenting 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 pendency 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’ continuing 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. 817

held that a separate juvenile court continues to exercise supervision of the juvenile during an appeal. 91

[31] 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. 92 The question 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 jurisdiction 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 during 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. 817

the 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 permanent 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 reliance 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 adjudication 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 interest 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. 817

more 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 himself or herself in any proceeding in which the judge’s impartiality 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).

101Neb. Rev. Code of Judicial Conduct § 5-302.7.

102Neb. 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. 817

is 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 reasonable 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.