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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

In re Interest of A.A. et al., children 

under 18 years of age.

State of Nebraska, appellee, v. Joshua C., 

appellant, and Stacy J., appellee.

___ N.W.2d ___

Filed January 7, 2022. No. S-21-421.

1. Judgments: Appeal and Error. The construction of a mandate issued 

by an appellate court presents a question of law, on which an appellate 

court is obligated to reach a conclusion independent of the determination 

reached by the court below.

2. Appeal and Error. Appellate review is guided and constrained by the 

assignment of error as articulated by the party appealing.

3. Notice: Appeal and Error. The assignments of error section is one of 

the most critical sections of an appellant’s or cross-appellant’s brief. It 

gives the opposing party notice of what alleged errors to respond to and 

advises the appellate court of what allegations of error by the trial court 

it has been called upon to address.

4. Appeal and Error: Words and Phrases. A “remand” is an appellate 

court’s order returning a proceeding to the court from which the appeal 

originated for further action in accordance with the remanding order.

5. Courts: Appeal and Error. When a lower court is given specific 

instructions on remand, it must comply with the specific instructions and 

has no discretion to deviate from the mandate.

6. Child Custody. Temporary physical custody with a noncustodial parent 

should not create a substantial and unnecessary hindrance to efforts of 

reunification with the custodial parent.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Affirmed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Nebraska Supreme Court Online Library

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

02/04/2022 12:06 AM CST
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

Patrick F. Condon, Lancaster County Attorney, and Haley N. 

Messerschmidt for appellee State of Nebraska.

Theresa Cusic, of Legal Aid of Nebraska, for appellee 

Stacy J.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Upon remand, following our opinions in In re Interest of 

A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020) (A.A. I), 

and In re Interest of A.A. et al., 308 Neb. 749, 957 N.W.2d 

138 (2021) (A.A. II) (denying motion for attorney fees), the 

separate juvenile court of Lancaster County held a hearing on 

reunifying the juvenile, B.C., from a foster home to the home 

of one of the child’s biological parents. The juvenile court 

entered an order placing physical custody of the minor child 

with his biological mother, Stacy J., from whom B.C. had 

initially been taken. It also considered and overruled a motion 

for legal custody and placement of B.C. filed by the biological 

father, Joshua C. Joshua appeals the order of the juvenile court 

and claims that the order placing custody of B.C. with Stacy 

exceeded our mandate. We affirm.

STATEMENT OF FACTS

Prior Proceedings.

The circumstances of B.C.’s removal from Stacy’s home following a petition alleging child endangerment are set forth fully 

in our main opinion, A.A. I, supra, which we summarize below 

as relevant to the present appeal. The main opinion, published 

in November 2020, addressed two consolidated appeals from 

ongoing proceedings to adjudicate B.C., who had previously 

lived with Stacy and her other children. B.C. was removed 

from Stacy’s home pending adjudication, upon a finding that 

remaining in Stacy’s home would be contrary to B.C.’s health, 

safety, and welfare and would not be in B.C.’s best interests.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

The parties agree that Joshua is B.C.’s biological father and 

had an established parental relationship with him. Id. Joshua 

intervened in the juvenile proceedings in October 2019 and 

alleged that with the exception of a then 1-year separation 

from Stacy, Joshua had lived with B.C. and provided continuous care and support for him. Joshua filed a motion requesting 

that B.C. be placed with him immediately. Although the State 

did not allege that Joshua was unfit to parent B.C., after a 

hearing, the court denied Joshua’s motion for temporary placement on the ground of unfitness. The finding was based on 

concerns about Joshua’s hospitalization and rehabilitation from 

Guillain-Barre syndrome just prior to the hearing and the juvenile court’s conclusion that a transition plan needed to be in 

place before Joshua took custody of B.C. Joshua successfully 

appealed this order.

In our main opinion, we concluded, inter alia, that Joshua 

was deprived of due process when the court refused to recognize his parental preference over the State to B.C.’s custody and 

specifically by finding Joshua unfit without any formal allegation that would have placed Joshua on notice that he would be 

required to defend against an attempt by the State to prove he 

had lost the presumption of parental preference. A.A. I, supra. 

We remanded the cause to the juvenile court to develop a 

transition plan into Joshua’s temporary physical custody after 

establishing the most up-to-date information. Id.

Subsequent to our main opinion, Joshua moved for an award 

of attorney fees, and we determined that the State was substantially justified in commencing juvenile proceedings seeking to 

adjudicate the child as endangered by Stacy and that attorney 

fees were not warranted. See A.A. II, supra. A mandate issued 

on April 13, 2021, ordering the juvenile court to enter judgment in conformity with our main opinion.

Further Proceedings.

During his appeal, Joshua opposed requests to speak with 

the Nebraska Department of Health and Human Services 

(DHHS). According to emails sent by Joshua’s attorney in 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

November 2020, Joshua would not allow DHHS “to ply information from him regarding his physical or mental condition, 

beliefs, feelings, attitudes, practices, customs, personal history, 

associations, affiliations, or relationships, or the conditions 

of his home.” Joshua proposed that DHHS should deliver the 

child with his personal items to Joshua and make arrangements 

for his school attendance and dependent benefits through 

Joshua’s Social Security disability. Joshua threatened to terminate any discussion if DHHS personnel posed personal questions to him.

Our main opinion was filed on November 20, 2020. See 

A.A. I, supra. On November 25, DHHS proposed a transition 

plan into Joshua’s care which recommended “a short physical transition,” under which contact frequency and duration 

is increased. The transition plan included (1) a walkthrough 

of the residence of Joshua to ensure it is still in appropriate 

condition; (2) reasonable access to B.C.; (3) the ability for 

the assigned DHHS case manager to speak directly to Joshua 

regarding B.C.’s condition and needs so long as B.C. remains a 

state ward; (4) assurance that B.C.’s therapy will continue and 

to identify any barriers to continuance of the service, if any; 

and (5) B.C.’s continued enrollment in school. DHHS invited 

Joshua to suggest sibling visitation.

Joshua, through his attorney, resisted the terms of DHHS’ 

plan, stating that “[t]here’s not going to be a ‘walkthrough’ or 

any other of this stuff.”

On April 6, 2021, DHHS moved the juvenile court for an 

order approving a change in placement for B.C. to the home 

of one of his parents. Joshua immediately moved the juvenile 

court to enter a dispositional order removing B.C. from the 

care and custody of DHHS and committing him to the care and 

custody of Joshua, without supervision or conditions, and to 

thereafter terminate its jurisdiction over B.C.

Subsequent to the filing of our main opinion, the juvenile 

court received the mandate from this court, which had been 

delayed because of continued appellate proceedings. The juvenile court scheduled a disposition hearing; a child support 
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310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

hearing on various motions, including a hearing on the motion 

to award temporary legal custody; and a hearing on the motion 

to establish a transition plan. The hearings were held on May 

14, 2021, where the juvenile court received evidence and arguments from the parties.

At the time of the hearing, B.C. was still a state ward and 

continued to reside out of the homes of both Stacy and Joshua. 

DHHS supported B.C.’s being placed with Joshua and, as 

noted, in November 2020, had proposed a transition plan for 

placement of B.C. with Joshua. However, Joshua continued 

to oppose the DHHS plan and, as reflected in his affidavit in 

the record, swore he had “no intention in taking part in the 

development or implementation of a ‘plan’ for the ‘transition’ 

of [B.C.] into my custody.” As a result, without an appropriate 

transition plan, the juvenile court found it was not empowered 

to place custody with Joshua and still adhere to our mandate. 

The court overruled Joshua’s motion for legal custody and 

motion for placement.

Next, the juvenile court turned to whether B.C. should be 

reunited with Stacy. The court found that Stacy had worked 

diligently with DHHS to correct the issues that led to the 

removal of B.C. The order noted that Stacy had been involved 

with intensive family reunification services, parenting classes, 

a psychological evaluation, individual counseling on an out

patient basis, family support, and a parenting assessment. 

Stacy was gainfully employed and maintained safe and stable 

housing. Her supervision had been lowered with respect to her 

probation as part of her criminal case. Significantly, Stacy had 

monitored parenting time with B.C. for about 7 months with no 

reported safety concerns and had overnight parenting time with 

B.C. for about 3 months prior to the hearing.

The court found that B.C. was “no longer in need of [a] 

foster care placement” and that it was in the best interests of 

B.C. to return to the physical custody of Stacy, subject to satisfaction of the terms of a transition plan. The transition plan, 

similar to that which DHHS had proposed to Joshua, provided 

that (1) DHHS will conduct a walkthrough of the residence of 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

the mother to ensure it is in appropriate condition prior to 

placement; (2) the mother shall allow DHHS and the guardian 

ad litem reasonable access to B.C.; (3) the assigned DHHS case 

manager shall have the ability to speak directly to the mother 

regarding B.C.’s condition and needs, so long as B.C. remains 

a state ward; (4) the mother shall ensure that B.C.’s therapy 

continues, so long as B.C.’s therapist recommends a continued 

need for therapy services; (5) the mother shall ensure that B.C. 

is enrolled in school; (6) the mother shall fully cooperate with 

“random drop-ins” of her residence by DHHS or its designee; 

and (7) a family therapy session shall occur between B.C, his 

therapist, and the mother prior to placement back in the home 

of the mother, so that B.C. is adequately prepared for the transition. The foster parents would be invited to participate in this 

therapy session.

The juvenile court granted DHHS’ motion for a placement 

change and ordered that the physical custody of B.C. be placed 

with Stacy upon her completion of the conditions of the above 

transition plan.

Joshua appeals.

ASSIGNMENT OF ERROR

As his sole assignment of error, Joshua claims that “[t]he 

juvenile court’s order placing custody of B.C. with Stacy was 

void because it exceeded the juvenile court’s authority under 

the mandate.”

STANDARD OF REVIEW

[1] The construction of a mandate issued by an appellate 

court presents a question of law, on which an appellate court is 

obligated to reach a conclusion independent of the determination reached by the court below. State v. Harris, 307 Neb. 237, 

948 N.W.2d 736 (2020).

ANALYSIS

As his sole assignment of error, Joshua claims that “[t]he 

juvenile court’s order placing custody of B.C. with Stacy was 

void because it exceeded the juvenile court’s authority under 
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310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

the mandate.” The order on appeal filed May 18, 2021, determined a number of issues, including overruling Joshua’s motion 

for legal custody, sustaining DHHS’ motion for a placement 

change, and placing physical custody with Stacy.

[2,3] As an initial matter, we iterate that the scope of our 

appellate analysis is determined by the error assigned. That is, 

our appellate review is guided and constrained by the assignment of error as articulated by the party appealing. See Neb. 

Ct. App. P. § 2-109(D) (rev. 2021). See, also, Neb. Rev. Stat. 

§ 25-1919 (Reissue 2016); In re Interest of Mekhi S. et al., 

309 Neb. 529, 960 N.W.2d 732 (2021); Great Northern Ins. 

Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d 

378 (2021). We have repeatedly refused to waive the requirement of § 2-109(D)(1) that an appellant set forth a separate 

and concise statement of each error the party contends was 

made by the trial court, through separately numbered and 

paragraphed assignments of error contained in a separate 

section of the brief, designated with an appropriate heading, 

and located after the statement of the case and preceding 

the propositions of law. Great Northern Ins. Co., supra. The 

assignments of error section is one of the most critical sections 

of an appellant’s or cross-appellant’s brief. Id. It gives the 

opposing party notice of what alleged errors to respond to and 

advises the appellate court of what allegations of error by the 

trial court it has been called upon to address. Id. Designated 

assignments of error are required not only by our court rules 

but also by § 25-1919, which states that “[t]he brief of appellant shall set out particularly each error asserted and intended 

to be urged for the reversal, vacation, or modification of the 

judgment, decree, or final order alleged to be erroneous . . . .” 

Accordingly, we decline to take up additional claims beyond 

that concerning “[t]he juvenile court’s order placing custody of 

B.C. with Stacy . . . .”

[4,5] The focus of Joshua’s assignment of error is on placement of B.C. with Stacy and the relationship of such placement 

vis-a-vis our main opinion and mandate. Thus, we review several principles of procedure following an appeal. A “remand” 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

is an appellate court’s order returning a proceeding to the 

court from which the appeal originated for further action in 

accordance with the remanding order. TransCanada Keystone 

Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 145 (2020). 

When a lower court is given specific instructions on remand, 

it must comply with the specific instructions and has no discretion to deviate from the mandate. Id. But it is also true, as 

we recognized in our main opinion, A.A. I, that the juvenile 

court has retained its continuing jurisdiction over this juvenile 

matter even during Joshua’s prior appeal. See In re Interest of 

Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).

Referring to A.A. I, Joshua highlights that we reversed the 

juvenile court’s order that denied Joshua’s motion for placement and remanded 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.” 307 

Neb. at 851, 951 N.W.2d at 171. From this, Joshua maintains 

that he is entitled to B.C.’s placement non plus ultra. We do 

not agree.

[6] Contrary to Joshua’s argument and assignment of error, 

nothing in our opinion or mandate was antithetical to reunification of B.C. with Stacy, nor did our previous disposition 

undermine the juvenile court’s power to expeditiously proceed 

with Stacy’s “rehabilitative plan and placement of the children 

back in her care.” A.A. I, 307 Neb. at 860, 951 N.W.2d at 175. 

The portion of our main opinion which Joshua asserts stripped 

the juvenile court of power concerned temporary physical custody of B.C. with a parent as a preferred alternative to placement with a nonparent. We explained that at the time of B.C.’s 

removal, Stacy was the de facto custodial parent; and further, 

the juvenile court had the power to require her cooperation 

with orders of visitation and its reunification plan which could 

return B.C. to her home. A.A. I, supra. We noted that temporary 

physical custody with a noncustodial parent should not create 

a “‘substantial and unnecessary hindrance to efforts of reunification’” with the custodial parent. Id. at 852, 951 N.W.2d at 
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310 Nebraska Reports

IN RE INTEREST OF A.A. ET AL.

Cite as 310 Neb. 679

171 (quoting In re Interest of Ethan M., 15 Neb. App. 148, 723 

N.W.2d 363 (2006)).

In our main opinion, we explained that a juvenile court 

may exercise its parens patriae responsibilities to “develop a 

transition plan constituting a reasonable intrusion of limited 

duration into the nonoffending parent’s rights to autonomy in 

the care and custody of the child.” Id. at 850, 951 N.W.2d at 

170. We explained that it would not violate due process for the 

juvenile court to adjudicate custody rights between two parents to require the nonoffending parent’s cooperation of goals 

with reunification back into the home from where the child 

was taken. Id. We emphasized that the juvenile court needed 

to establish the most up-to-date information in developing an 

appropriate plan for temporary placement. See A.A. I, supra.

As noted, the juvenile court always retained continuing 

jurisdiction to adjudicate B.C., and if warranted by up-to-date 

facts, it could proceed with a plan of reunifying B.C. with 

Stacy, the only parent over whom the court had jurisdiction at 

the time reunification was proposed. The fact that Joshua may 

have been proceeding on a parallel track to acquire temporary 

placement did not eclipse the potential for Stacy to acquire 

placement. The mandate associated with our main opinion, 

favorable to placement with Joshua, was not issued to the 

exclusion of “goals of reunification back into the home from 

where the child was taken.” Id. at 850, 951 N.W.2d at 170. 

Accordingly, Joshua’s sole assignment of error in which he 

claimed that placement of B.C. with Stacy exceeded the mandate is without merit.

CONCLUSION

The juvenile court’s order placing B.C. with Stacy pursuant 

to the terms of a transition plan were consistent with our opinion and mandate in A.A. I., supra. We affirm.

Affirmed.