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Cite as 30 Neb. App. 862

In re Interest of Marquee N., a child 

under 18 years of age.

State of Nebraska, appellee, v. 

Marquee N., appellant.

___ N.W.2d ___

Filed April 19, 2022. No. A-21-687.

1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are 

reviewed de novo on the record, and an appellate court is required to 

reach a conclusion independent of the juvenile court’s findings; 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.

2. Juvenile Courts: Parental Rights. Neb. Rev. Stat. § 43-248(2) (Cum. 

Supp. 2020) allows the State to take a juvenile into custody without a 

warrant or order of the court when it appears the juvenile is seriously 

endangered in his or her surroundings and immediate removal appears 

to be necessary for the juvenile’s protection. However, the parent retains 

a liberty interest in the continuous custody of his or her child.

3. Parental Rights: Notice. The State may not, in exercising its parens 

patriae interest, unreasonably delay in notifying a parent that the State 

has taken emergency action regarding that parent’s child nor unreasonably delay in providing the parent a meaningful hearing.

4. Appeal and Error. On appeal, a party cannot complain of error which 

the party has invited the court to commit.

5. Parental Rights: Child Custody. The parental preference doctrine 

holds that in a child custody controversy between a biological parent 

and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to the custody of the child.

6. Parental Rights: Child Custody: Presumptions. Under the parental 

preference doctrine, unless the State affirmatively shows a parent is 

unfit or has forfeited the right to custody, due regard for the parent’s 

Nebraska Supreme Court Online Library

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

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natural right to the custody of a child requires that a parent be presumptively regarded as the proper guardian.

7. 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.

8. Juvenile Courts: Jurisdiction: Child Custody: Proof. When the allegations of a petition for adjudication invoking the jurisdiction of the 

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

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

care placement unless it pleads and proves by a preponderance of the 

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

there are exceptional circumstances involving serious physical or psychological harm to the child or a substantial likelihood of such harm.

9. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of a child are served by reuniting the child 

with his or her parent that is overcome only when the parent has been 

proved unfit.

10. Child Custody: Parental Rights. While the best interests of the child 

remain the lodestar of child custody disputes, a parent’s superior right to 

custody must be given its due regard, and absent its negation, a parent 

retains the right to custody over his or her child.

11. ____: ____. A court may not deprive a parent of the custody of a child 

merely because the court reasonably believes that some other person 

could better provide for the child.

12. Due Process: Notice. Procedural due process generally requires that 

notice be given of such a nature as to reasonably convey the required 

information.

13. Parental Rights: Child Custody: Notice. In the context of denying 

parental preference in a placement decision during proceedings under 

Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), reasonable notice must 

include the factual bases for seeking to prove that the parent is unfit 

or has forfeited parental rights or that exceptional circumstances exist 

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

14. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

15. Juvenile Courts: Jurisdiction: Parental Rights: Proof. If the pleadings and evidence at the adjudication hearing do not justify a juvenile 

court’s acquiring jurisdiction of a child, then the juvenile court has no 
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jurisdiction, i.e., no power, to order a parent to comply with a rehabilitation plan, nor does the juvenile court have any power over the parent or 

child at the disposition hearing unless jurisdiction is alleged and proved 

by new facts at a new adjudication-disposition hearing.

16. Juvenile Courts: Parental Rights. After an adjudication under Neb. 

Rev. Stat. § 43-247(3)(a) (Reissue 2016) of the Nebraska Juvenile Code 

and before entering an order containing a rehabilitative plan for a parent, a juvenile court shall inform the juvenile’s parent that the court may 

order a rehabilitative plan and thereafter shall hold an evidential hearing to determine reasonable provisions material to the parental plan’s 

rehabilitative objective of correcting, eliminating, or ameliorating the 

situation or condition on which the adjudication has been obtained.

17. ____: ____. While there is no requirement that the juvenile court must 

institute a plan for rehabilitation of a parent, if it does, the rehabilitation 

plan must be conducted under the direction of the juvenile court and 

must be reasonably related to the plan’s objective of reuniting parent 

with child.

18. Juvenile Courts: Appeal and Error. In analyzing the reasonableness 

of a plan ordered by a juvenile court, the question is whether a provision in the plan tends to correct, eliminate, or ameliorate the situation 

or condition on which the adjudication has been obtained. If it does not, 

a court-ordered plan is nothing more than a plan for the sake of a plan, 

devoid of corrective and remedial measures.

Appeal from the County Court for Lincoln County: Joel B. 

Jay, Judge. Vacated and remanded with directions.

Claire K. Bazata, of Berreckman & Bazata, P.C., L.L.O., for 

appellant.

Kortnei Smith, Deputy Lincoln County Attorney, for 

appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Marquee N., Sr. (Marquee Sr.), appeals the order of the 

county court for Lincoln County, sitting as a juvenile court, 

which continued placement of his minor child outside the 

home, declining to place the child with Marquee Sr., and 
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ordered Marquee Sr. to participate in drug testing. Upon our 

de novo review of the record, we vacate the court’s order 

declining placement with Marquee Sr. and remand the cause 

with directions for further proceedings. We further vacate the 

portion of the order requiring participation in drug testing at 

this time.

BACKGROUND

Marquee Sr. is the biological father of Marquee N., Jr. 

(Marquee Jr.), born in August 2015. On June 16, 2021, the 

State filed a petition seeking to adjudicate Marquee Jr. as a 

child under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). 

The petition alleged that on or about May 17 through June 16, 

Marquee Jr. was in a situation or engaged in an occupation 

dangerous to life or limb or injurious to his health or morals. 

That same day, the State filed an ex parte motion for temporary 

custody. The corresponding affidavit indicated that on May 

17, the Nebraska Department of Health and Human Services 

(DHHS) received a report regarding the welfare of Marquee 

Jr. and his two siblings as it relates to their mother, Elizabeth 

C. The affidavit stated that a welfare check was conducted at 

Elizabeth’s home on May 4 after law enforcement was contacted by Marquee Sr. who advised that he had been on a video 

visit with Marquee Jr. and observed marijuana on Elizabeth’s 

kitchen table. Law enforcement responded to Elizabeth’s home 

and found marijuana located on the kitchen table, where the 

children could access it. On June 7, Elizabeth took her children 

for hair follicle testing, and Marquee Jr.’s hair tested positive 

for methamphetamine and marijuana.

As to Marquee Sr., the affidavit alleged:

[Marquee] Sr. has a lengthy criminal history which 

includes convictions for 3rd Degree Domestic Assault (1st

and 2nd Offense), Violation of Protection Order, and 3rd

Degree Assault.

Both domestic assaults involved [Elizabeth] as the 

victim. During the first assault, [Elizabeth] was pregnant with Marquee Jr. During the second assault, which 
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occurred on July 6, 2016, [Marquee] Sr. punched 

[Elizabeth] repeatedly in the face while she was holding 

Marquee Jr. During the second assault, [Marquee] Sr. also 

slapped 4 year old [Marquee Jr.’s half sibling] in the face 

numerous times.

The juvenile court granted the ex parte motion, placing 

temporary custody of Marquee Jr. with DHHS. The order for 

temporary custody also ordered Marquee Sr. to submit to wearing a drug patch to be monitored by DHHS. A hearing was set 

for June 29, 2021.

At the hearing, the court advised Marquee Sr. of his rights, 

and he entered a denial to the allegations in the petition. He 

also requested a hearing on the continued detention and placement of Marquee Jr. A hearing was initially scheduled for July 

9, but Marquee Sr. filed a motion to continue it because he 

needed additional time to obtain necessary evidence for the 

hearing. The matter was continued to August 4.

At the outset of the August 4, 2021, hearing, the parties 

clarified that the matter would proceed as a contested detention 

hearing with Marquee Sr. requesting that Marquee Jr. be placed 

in his home. The court received into evidence at the hearing an order dated June 28, 2021, from the district court for 

Lincoln County in a paternity case involving Marquee Sr. and 

Elizabeth. The district court’s order sets forth the relevant procedural history, relating that in April 2017, the court entered a 

judgment of paternity, adjudicating Marquee Sr. as the biological father of Marquee Jr., awarded custody to Elizabeth subject 

to reasonable visitation of Marquee Sr., and ordered Marquee 

Sr. to pay child support. The June 28 order was entered in 

response to Elizabeth’s motion to identify specific parenting 

time for Marquee Sr., which the district court granted, awarding him the first and third weekends of every month from 

Friday evening until Sunday evening and extended summer 

parenting time. The district court recognized, however, that 

between the time of trial on Elizabeth’s motion in its case and 

entry of its order, the juvenile court had become involved with 
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the family; therefore, it stayed its order specifying parenting 

time pending the conclusion of the juvenile court action.

The DHHS initial assessment worker testified at the 

detention hearing that after Marquee Jr. was removed from 

Elizabeth’s care, he inquired into placing him with Marquee Sr. 

At that time, however, there was an active protection order barring Marquee Sr. from the address he provided as his residence, 

and the alternative address he provided was a homeless shelter. 

The initial assessment worker explained that consequently, he 

was initially unable to place Marquee Jr. with Marquee Sr. The 

court received into evidence at the detention hearing a certified copy of a July 15, 2021, order from the district court for 

Lancaster County dismissing the protection order that had been 

issued against Marquee Sr. on February 5. Thus, at the time 

of the detention hearing on August 4, there was not an active 

protection order against Marquee Sr.

The initial assessment worker also explained that his background check on Marquee Sr. revealed two prior DHHS 

intakes involving domestic violence and a third intake that was 

not investigated. The first intake occurred in 2011 and was 

agency substantiated. The second intake involved the incident 

reported in the affidavit alleging that Marquee Sr. assaulted 

Elizabeth while she was holding Marquee Jr. The initial assessment worker acknowledged, however, that this intake, which 

occurred in 2016, was determined to be unfounded, meaning 

there was not enough evidence to support a finding by a preponderance of the evidence that the allegations were true.

As far as Marquee Sr.’s criminal history, the initial assessment worker testified that “there was domestic violence on his 

criminal history” and confirmed that Marquee Sr. has had convictions for domestic violence in the past. The initial assessment worker also found that three prior protection orders had 

been acquired against Marquee Sr.

The current DHHS caseworker, who took over the case 

from the initial assessment worker in July 2021, testified 

that Marquee Sr. has “multiple charges related to drugs and 
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alcohol or possession” on his record, but that the most recent 

charge was in 2009 for possession of marijuana and open 

alcohol container. She was asked whether that 12-year-old 

charge was concerning enough to require that Marquee Sr. 

wear a drug patch. She responded that Marquee Sr. was notified he could complete an “urgent needs assessment” and that 

to her knowledge, he had not done so, and without an urgent 

needs assessment to provide updated information, she affirmed 

that “it would be concerning at this time to me, yes.” She 

acknowledged that she had no recent allegations or information 

about current drug use by Marquee Sr. The initial assessment 

worker likewise testified that he had not asked Marquee Sr. 

about any drug or alcohol use and confirmed that the allegations in the petition were solely against Elizabeth and did not 

relate to Marquee Sr. When the initial assessment worker was 

asked about requiring drug patch testing for Marquee Sr., he 

explained that “[w]hen children are removed due to drugs in 

the home, all parents [are] put on patch testing.”

After Marquee Jr. was removed from Elizabeth’s care, he 

was placed with his two half siblings in the home of his maternal grandmother. The initial assessment worker acknowledged 

that since the time of removal, he had not visited Marquee Sr.’s 

home, had not sent any other workers to visit the home, and 

had not made contact with Marquee Sr.’s live-in fiance. He also 

had not completed a safety assessment on Marquee Sr. because 

the allegations in the case related solely to Elizabeth.

The current caseworker also admitted that she had not talked 

to Marquee Sr. in person or on the phone, had not spoken to 

his fiance, had not asked a courtesy worker to visit him or 

interview him, had not spoken to anyone in his family, and was 

unaware whether he was employed. Nevertheless, she opined 

that she would not even recommend allowing Marquee Sr. 

in-person visits with Marquee Jr. until she could speak with 

Marquee Sr. “and discuss his case as far as his family strengths 

and needs assessment, which would help build [the] case 

plan.” In addition, both she and the initial assessment worker 
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opined that placing Marquee Jr. with Marquee Sr. was not in 

the child’s best interests at that time.

In an order filed that same day, the juvenile court found that 

Marquee Jr.’s care, custody, and control should continue with 

DHHS for out-of-home placement. The court ordered Marquee 

Sr. to begin drug patch testing and to complete an urgent needs 

assessment. Marquee Sr. was awarded supervised visitation 

with Marquee Jr. In an order dated August 10, 2021, the court 

found that reasonable efforts had been made to return Marquee 

Jr. to his home and that it would be in his best interests that 

he be placed in the care, custody, and control of DHHS, and 

it ordered that he remain in his current foster placement. 

Marquee Sr. appeals.

During the pendency of the appeal, the State filed a motion 

to dismiss the appeal as moot because Marquee Jr. had been 

placed with Elizabeth, over Marquee Sr.’s objection. We 

denied the motion to dismiss. Counsel for Marquee Sr. confirmed at oral argument that Marquee Jr. was currently placed 

with Elizabeth.

ASSIGNMENTS OF ERROR

Marquee Sr. assigns, renumbered, that the juvenile court 

erred in (1) failing to timely hold an evidentiary hearing 

regarding the removal of Marquee Jr. in violation of Marquee 

Sr.’s right to due process, (2) failing to return Marquee Jr. to 

him when no allegations had been made regarding his care of 

the child, (3) finding that reasonable efforts had been made to 

preserve and reunify the family, and (4) failing to afford him 

due process prior to ordering him to submit to wearing a drug 

test patch.

STANDARD OF REVIEW

[1] Juvenile cases are reviewed de novo on the record, and 

an appellate court is required to reach a conclusion independent 

of the juvenile court’s findings; however, when the evidence is 

in conflict, an appellate court may consider and give weight 

to the fact that the trial court observed the witnesses and 
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accepted one version of the facts over the other. In re Interest 

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

ANALYSIS

Timeliness of Initial Hearing.

Marquee Sr. assigns that the juvenile court failed to timely 

hold an evidentiary hearing regarding the continued detention 

of Marquee Jr. in violation of Marquee Sr.’s right to due process. Because the hearing date was continued upon Marquee 

Sr.’s request, we find no error in its timeliness.

[2,3] Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2020) allows 

the State to take a juvenile into custody without a warrant 

or order of the court when it appears the juvenile “is seriously endangered in his or her surroundings and immediate 

removal appears to be necessary for the juvenile’s protection.” However, the parent retains a liberty interest in the 

continuous custody of his or her child. In re Interest of Kane 

L. & Carter L., 299 Neb. 834, 910 N.W.2d 789 (2018). An 

ex parte order authorizing temporary custody with DHHS is 

permitted because of its short duration and the requirement of 

further action by the State before custody can be continued. 

Id. But the State may not, in exercising its parens patriae interest, unreasonably delay in notifying a parent that the State 

has taken emergency action regarding that parent’s child nor 

unreasonably delay in providing the parent a meaningful hearing. Id. Therefore, following the issuance of an ex parte order 

for temporary immediate custody, a prompt detention hearing 

is required in order to protect the parent against the risk of an 

erroneous deprivation of his or her parental interests. Id. At 

the detention hearing, the State must prove by a preponderance 

of the evidence that continuation of the juvenile in his or her 

home would be contrary to the juvenile’s welfare. See In re 

Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 

120, 582 N.W.2d 350 (1998).

In In re Interest of R.G., supra, the Nebraska Supreme Court 

recognized that parents have a due process right to be free 
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from an unreasonable delay in providing the parents a meaningful hearing after an ex parte order for immediate custody 

is filed. The court concluded that the mother’s due process 

rights were not violated by a 14-day delay between the entry of 

an ex parte order and that of a detention order when she was 

given an opportunity to be heard at the detention hearing and 

was allowed to visit her children in the interim. But the court 

cautioned that this 14-day delay between the ex parte order and 

detention hearing was “on the brink of unreasonableness.” Id. 

at 423, 470 N.W.2d at 792.

In the present case, the ex parte temporary detention order 

was entered on June 16, 2021, and the initial appearance 

occurred on June 29. At that time, however, the juvenile court 

declined to hold an evidentiary hearing and set the matter to 

receive evidence related to continued detention and placement 

of Marquee Jr. for July 9. Thus, the court did not intend to hold 

an evidentiary detention hearing until 23 days after the ex parte 

order was entered. This is 9 days beyond the timeframe the 

Supreme Court labeled the “brink of unreasonableness.”

[4] However, the July 9, 2021, hearing was continued to 

August 4 on Marquee Sr.’s motion. He asked for a continuance 

because he needed additional time to obtain evidence necessary 

for the hearing. On appeal, a party cannot complain of error 

which the party has invited the court to commit. Mahlendorf v. 

Mahlendorf, 308 Neb. 202, 952 N.W.2d 923 (2021). Because 

Marquee Sr. asked that the hearing be continued, we cannot 

predicate error on its timeliness.

Placement of Marquee Jr. 

and Reasonable Efforts.

Marquee Sr. argues that the juvenile court erred in refusing to place Marquee Jr. with him because the State failed 

to affirmatively show that he was unfit. We agree that the 

State failed to meet its burden of proving that he was unfit. 

Therefore, the parental preference doctrine required that the 

court place Marquee Jr. with Marquee Sr.
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[5-7] The Supreme Court has held in situations where a child 

is removed from one parent’s home pursuant to the juvenile 

code that the juvenile court’s discretion regarding placement 

pending disposition is limited by Nebraska’s “‘parental preference doctrine,’” which governs the rights of the other parent 

against whom no allegations have been made. In re Interest of 

A.A. et al., 307 Neb. 817, 845, 951 N.W.2d 144, 167 (2020). 

The parental preference doctrine holds that in a child custody 

controversy between a biological parent and one who is neither 

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

superior right to the custody of the child. Id. Under the 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. 

Id. Only exceptional circumstances involving proof of serious 

physical or psychological harm to the child or a substantial 

likelihood of such harm will negate the superior right of a fit 

parent who has not forfeited parental rights to custody under 

the parental preference doctrine. Id.

[8] Our case law is clear that when the allegations of a petition for adjudication invoking the jurisdiction of the juvenile 

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

other parent’s request for temporary physical custody in lieu 

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

preponderance of the evidence that the other parent is unfit 

or has forfeited custody or that there are exceptional circumstances involving serious physical or psychological harm to 

the child or a substantial likelihood of such harm. Id. But see, 

In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 

N.W.2d 174 (2011) (requiring clear and convincing evidence 

that biological or adoptive parent either is unfit or has forfeited 

his or her right to custody in proceeding to terminate guardianship); In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 

238 (2004) (parental unfitness must be shown by clear and 

convincing evidence to overcome parental preference principle 
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in proceeding to terminate guardianship). There are no allegations in the present case that Marquee Sr. forfeited his right 

to custody or that there are any of the requisite exceptional 

circumstances. Therefore, the State was required to prove that 

Marquee Sr. was unfit in order to deprive him of the custody 

of his child.

We note that at the detention hearing, the State placed 

its focus on Marquee Jr.’s best interests. Both the initial 

assessment worker and current caseworker opined that placing 

Marquee Jr. with Marquee Sr. at that time was not in the child’s 

best interests, and in its arguments to the court, the guardian ad 

litem likewise expressed concern about moving the child from 

his current placement with his grandmother and siblings, arguing that allowing Marquee Jr. to remain in his current placement was in his best interests. However, this type of analysis 

does not come into play until after there has been a finding of 

parental unfitness or forfeiture. See In re Interest of Lakota Z. 

& Jacob H., supra.

[9] Although the name of the best interests of the child standard may invite a different intuitive understanding, the standard does not require simply that a determination be made that 

one environment or set of circumstances is superior to another. 

Id. Rather, the best interests standard is subject to the overriding recognition that the relationship between parent and child 

is constitutionally protected. Id. There is a rebuttable presumption that the best interests of a child are served by reuniting 

the child with his or her parent that is overcome only when 

the parent has been proved unfit. Id. Based on the idea that fit 

parents act in the best interests of their children, this presumption is overcome only when the parent has been proved unfit or 

there has been a forfeiture. See id.

[10,11] Additionally, while the best interests of the child 

remain the lodestar of child custody disputes, a parent’s superior right to custody must be given its due regard, and absent 

its negation, a parent retains the right to custody over his or 

her child. In re Guardianship of D.J., supra. In other words, 
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a parent retains the right to custody unless it is proved that 

the parent is unfit or has forfeited his or her right to custody. 

A court may not deprive a parent of the custody of a child 

merely because the court reasonably believes that some other 

person could better provide for the child. In re Interest of Lilly 

S. & Vincent S., 298 Neb. 306, 903 N.W.2d 651 (2017). Stated 

another way, “the fact that the State considers certain prospective adoptive parents ‘better’ [does not] overcome the constitutionally required presumption that reuniting with [a parent] 

is best.” In re Interest of Xavier H., 274 Neb. 331, 350, 740 

N.W.2d 13, 26 (2007). The court has never deprived a parent 

of the custody of a child merely because on financial or other 

grounds a stranger might better provide. Id.

Thus, in the instant case, the initial question is not whether 

the child’s best interests are served by remaining in his current 

placement because it would be “better” for him, but, rather, 

whether the presumption that his best interests are served by 

reuniting with Marquee Sr. has been rebutted by sufficient evidence that Marquee Sr. is unfit. See id. As noted above, there 

are no allegations that Marquee Sr. forfeited his right to custody, and the juvenile court made no such finding. Accordingly, 

we must determine whether the State presented sufficient evidence to prove that he was unfit.

[12,13] Prior to the evidentiary detention hearing, however, the State was required to give Marquee Sr. notice that it 

was challenging his fitness. Procedural due process generally 

requires that notice be given of such a nature as to reasonably 

convey the required information. In re Interest of A.A. et al., 

307 Neb. 817, 951 N.W.2d 144 (2020). In the context of 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 rights or that exceptional circumstances 

exist involving serious physical or psychological harm to the 

child or a substantial likelihood of such harm. In re Interest 

of A.A. et al., supra. While as to the parent from whose home 
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the child was removed, such notice is ordinarily contained in 

the petition for adjudication, allegations as to the fault or habits 

of the custodial parent do not operate to give notice to the noncustodial parent that the State seeks to rebut that parent’s right 

to parental preference in its placement decisions. Id.

Here, the petition did not assert any allegations of unfitness 

against Marquee Sr.; rather, the allegations were vague and 

general, but the parties understood that they related only to 

drug possession and use by Elizabeth. The initial assessment 

worker confirmed this at the detention hearing. Therefore, the 

petition itself did not place Marquee Sr. on notice that the State 

intended to rebut the presumption of his parental fitness.

In his brief, Marquee Sr. relays information contained in 

the affidavit the State filed in support of the ex parte temporary detention order. We note that a copy of this affidavit was 

offered and received into evidence at a July 6, 2021, hearing, 

but the record establishes that neither Marquee Sr. nor his 

counsel were present at the hearing because the issues being 

addressed related solely to Elizabeth. Despite this, because 

Marquee Sr. relies on the affidavit in his arguments as to this 

issue, we assume he received a copy of it prior to the detention hearing, and we assume, without deciding, that this was 

sufficient to place him on notice that the State was seeking to 

prove that he was unfit for placement of Marquee Jr. Because 

reasonable notice must include the factual bases for seeking to 

prove that the parent is unfit, the grounds upon which the State 

could establish Marquee Sr.’s unfitness were limited to those 

raised in the affidavit.

The affidavit alleged that Marquee Sr. “has a lengthy 

criminal history,” including convictions for domestic assault, 

violation of a protection order, and third degree assault. It 

further alleged that both domestic assaults involved Elizabeth 

as the victim and that during the first assault, she was pregnant with Marquee Jr. The affidavit asserted that during 

the second assault, Marquee Sr. punched Elizabeth repeatedly in the face while she was holding Marquee Jr. and also 
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slapped Marquee Jr.’s then 4-year-old sibling. From this language, we conclude that the State was limited to proving that 

Marquee Sr. was unfit due to his criminal history of assaultive behavior.

As to the specific allegations contained in the affidavit, evidence was offered to support only generalized past domestic 

violence convictions. No evidence was offered to support the 

allegation that Marquee Sr. had specifically been convicted of 

third degree domestic assault (first and second offense), violation of a protection order, or third degree assault.

The evidence regarding Marquee Sr.’s domestic assault convictions came from the initial assessment worker who testified 

that “there was domestic violence on his criminal history,” and 

he confirmed that Marquee Sr. “has had convictions for domestic violence in the past.” No additional information such as 

dates of any convictions, specific crimes, or number of offenses 

was offered.

Although the affidavit provided detail regarding “[b]oth 

domestic assaults” which we presume relate to the allegation 

of a conviction for “3rd Degree Domestic Assault (1st and 2nd

Offense),” no evidence of a conviction was offered. Rather, 

the initial assessment worker explained that his background 

check on Marquee Sr. revealed two prior intakes to DHHS that 

alleged domestic violence, but only one was agency substantiated. That incident occurred in 2011, before either Marquee Jr. 

or his siblings were born and is not referenced in the affidavit. The other intake to DHHS was described in the affidavit 

as one of the domestic assaults, and the affidavit reported 

that Marquee Sr. assaulted Elizabeth while she was holding 

Marquee Jr. in 2016. The initial assessment worker explained, 

however, that this intake was determined to be unfounded, 

meaning there was not enough evidence to support a finding by 

a preponderance of the evidence that the allegations were true. 

No evidence was provided as to the “first assault” described 

in the affidavit which allegedly occurred when Elizabeth was 

pregnant with Marquee Jr.
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As stated above, there was no evidence that Marquee Sr. was 

convicted of violating a protection order; in fact, there was no 

evidence that he had ever violated one. The initial assessment 

worker testified to “finding” three protection orders in which 

Marquee Sr. was the respondent, but no dates were provided, 

nor was there testimony that they had been violated. The initial 

assessment worker testified that he was originally unable to 

place Marquee Jr. with Marquee Sr. because there was a protection order prohibiting Marquee Sr. from the address he provided as his residence and the alternative address he provided 

was a homeless shelter. However, the evidence proved that 

that protection order had been dismissed and was no longer in 

effect at the time of the detention hearing. In fact, the alleged 

victim attended the detention hearing and was introduced to the 

court as Marquee Sr.’s fiance.

Separate from the allegations in the affidavit, the State 

offered evidence to prove Marquee Sr.’s unfitness on other 

grounds, including the 2011 intake to DHHS which was agency 

substantiated; the previous protection orders; whether Marquee 

Sr. participated in the visitation that had been offered thus far 

in the case; whether he was complying with the drug patch 

that the court ordered in its temporary order; previous drug or 

alcohol charges, with the most recent occurring in 2009; statements Marquee Jr. made referring to Marquee Sr.’s hitting him 

in the nose on one occasion or hitting women; and Marquee 

Sr.’s refusing to return Marquee Jr. to Elizabeth for several 

months in the summer of 2020. Because Marquee Sr. did not 

have notice that the State would be seeking to prove his parental unfitness on these bases, however, we do not consider them 

for whatever evidentiary value they may have had.

Parental unfitness means a personal deficiency or 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 

well-being. In re Interest of A.A. et al., 307 Neb. 817, 951 

N.W.2d 144 (2020). The Supreme Court has analogized the 
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quantum of proof necessary to prove unfitness to the proof 

necessary to terminate parental rights, reasoning that “‘[i]f 

the evidence of unfitness is insufficient to justify termination 

of parental rights in an action maintained under the Nebraska 

Juvenile Code,’” then “‘similarly deficient evidence of parental 

unfitness’” would prevent a court from granting child custody 

“‘to one who is a stranger to the parent-child relationship.’” In 

re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 594, 804 

N.W.2d 174, 182 (2011).

The evidence in the record related to Marquee Sr.’s unfitness 

as a parent, and for which he had notice, includes only the initial assessment worker’s testimony that Marquee Sr. has prior 

convictions for domestic violence crimes. The evidence to 

the contrary establishes that a district court originally granted 

Marquee Sr. parenting time with Marquee Jr. in 2017, which he 

routinely exercised, and clarified his parenting time during the 

pendency of this case, and that there were no concerns raised 

in the context of that case related to Marquee Sr.’s fitness as a 

parent such that there were any limitations placed on his parenting time, like supervision. We conclude that the totality of 

this evidence, without more, would be insufficient upon which 

to terminate Marquee Sr.’s parental rights for unfitness, and 

therefore, it is insufficient to overcome the presumption of his 

parental fitness.

Even if we consider the evidence of which Marquee Sr. had 

no notice, we remain unconvinced that the State met its burden 

of proving him unfit. The evidence lacks necessary details outlining what crimes Marquee Sr. has been charged with, whether 

he was convicted of any of those crimes, and when any convictions occurred. Further, the initial intake worker alluded to 

protection orders having been acquired against Marquee Sr. 

in the past, but again, he did not specify when they occurred 

or whether they were ultimately dismissed as was the most 

recent order. There was no evidence offered to support the 

allegation in the affidavit that Marquee Sr. had ever violated a 

protection order. We understand the juvenile court’s concerns 
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of a parent with a history of domestic violence; however, we 

cannot find that the evidence in our record is sufficient to 

overcome the constitutionally required presumption of parental preference.

Without sufficient evidence proving that Marquee Sr. was 

unfit, the parental preference doctrine required placement of 

Marquee Jr. with Marquee Sr. Accordingly, we vacate the 

juvenile court’s order denying placement of Marquee Jr. with 

Marquee Sr. and impliedly finding him unfit, and we remand 

the cause with directions for further proceedings. However, 

during the pendency of this appeal, Marquee Jr. was removed 

from his foster home and placed with Elizabeth. Therefore, 

upon remand, the issue before the juvenile court is not placement of the child as between the State and a parent, but rather 

placement of the child as between two parents.

[14] Having vacated the court’s decision declining to place 

Marquee Jr. with Marquee Sr., we need not address his argument that the court erred in finding that reasonable efforts 

had been made to preserve and reunify the family. An appellate court is not obligated to engage in an analysis that is 

not necessary to adjudicate the case and controversy before 

it. In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 

704 (2021).

Order for Drug Testing.

Marquee Sr. also argues that the juvenile court erred in 

ordering him to submit to drug testing by wearing a drug patch 

to be monitored by DHHS. We agree that these orders were 

erroneous but for reasons different from those Marquee Sr. 

raises here.

On June 16, 2021, the State filed the petition alleging that 

Marquee Jr. was a child within the meaning of § 43-247(3)(a), 

along with the ex parte motion for temporary custody. That 

same day, the juvenile court entered the order granting temporary custody of Marquee Jr. to DHHS. The court further 

ordered Marquee Sr. “to submit to wearing a drug patch to be 

monitored and paid for by [DHHS].” In the August 4 order, 
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the court again ordered that Marquee Sr. begin “patch testing.” 

On August 10, the court found that Marquee Jr. came within 

the meaning of § 43-247(3)(a) after Elizabeth did not contest 

the allegations of the petition.

The court’s requirement that Marquee Sr. wear a drug patch 

is erroneous for two reasons. First, prior to adjudicating a 

child under § 43-247(3)(a), the court lacks jurisdiction over 

the parties. When a juvenile court adjudicates a minor under 

§ 43-247(3), it also obtains exclusive jurisdiction over the parent, or stated another way, an adjudication under the Nebraska 

Juvenile Code brings all the parties identified in § 43-247(3) 

and (5) under the juvenile court’s exclusive jurisdiction. See 

In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 

758 (2005). Thus, the juvenile court acquires jurisdiction over 

a juvenile and his parents when it finds conditions that fit 

§ 43-247(3)(a) and adjudicates the child as a juvenile within 

the meaning of § 43-247(3)(a). See In re Interest of Devin W. 

et al., supra.

[15] If the pleadings and evidence at the adjudication hearing do not justify a juvenile court’s acquiring jurisdiction of a 

child, then the juvenile court has no jurisdiction, i.e., no power, 

to order a parent to comply with a rehabilitation plan, nor does 

the juvenile court have any power over the parent or child at 

the disposition hearing unless jurisdiction is alleged and proved 

by new facts at a new adjudication-disposition hearing. In re 

Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992). See, 

also, Christine P. Costantakos, Juvenile Court Law and Practice 

§ 3:4 (2021) (where no adjudication has taken place, court has 

no authority to order parent to participate in plan of rehabilitation, or to fulfill any other requirement or affirmative duty 

such as submit to psychological or psychiatric evaluation, drug 

screens, or chemical dependency evaluation).

This court has previously observed that § 43-247 does not 

grant the juvenile court jurisdiction over the parent, guardian, 

or custodian of a juvenile who has merely been alleged to be 

within the ambit of § 43-247; rather, the juvenile court does 
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not obtain jurisdiction over a juvenile’s parent, guardian, or 

custodian until a finding of adjudication. See In re Interest 

of Meley P., 13 Neb. App. 195, 689 N.W.2d 875 (2004). In 

In re Interest of Meley P., the juvenile court entered an order 

continuing temporary custody of the child with DHHS after 

holding a detention hearing but prior to adjudication. In that 

temporary order, the court also ordered that the parents have no 

contact with each other due to a history of domestic violence. 

On appeal, we found that although the State had alleged that 

the child was a child within the meaning of § 43-247(3)(a), 

there had not yet been a finding of adjudication. Thus, the 

juvenile court lacked jurisdiction over the parents at the time 

the temporary order was entered, and we reversed the provision prohibiting contact between them.

Accordingly, because the adjudication is the operative event 

that confers jurisdiction of the court over the parents and the 

children, prior to the adjudication, the juvenile court has no 

authority to order the parents to participate in services or to 

submit to treatment. See Costantakos, supra, § 2:2. Therefore, 

at the time the juvenile court in this case entered the temporary 

detention order and the August 4, 2021, order, both of which 

occurred prior to entry of an order adjudicating Marquee Jr. 

under § 43-247(3)(a), it had no authority to order Marquee Sr. 

to wear a drug patch.

In addition, the court’s orders requiring Marquee Sr. to wear 

a drug patch were made without notice to him that the court 

may order services and without holding an evidentiary hearing regarding the propriety of any services. Further, the orders 

were made without any evidence that this provision was reasonably related to the condition on which the allegations in the 

petition were based.

[16] The Supreme Court has announced a procedural rule 

requiring a juvenile court to hold a hearing before entering an 

order containing a rehabilitative plan for a parent:

[A]fter an adjudication under § 43-247(3)(a) of the 

Nebraska Juvenile Code and before entering an order 
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containing a rehabilitative plan for a parent, a juvenile 

court shall inform the juvenile’s parent that the court 

may order a rehabilitative plan and thereafter shall hold 

an evidential hearing to determine reasonable provisions 

material to the parental plan’s rehabilitative objective of 

correcting, eliminating, or ameliorating the situation or 

condition on which the adjudication has been obtained.

In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 272-73, 417 

N.W.2d 147, 161 (1987). Fundamental fairness requires the 

adducing of appropriate evidence as a factual foundation for a 

rehabilitative plan which eventually may be used as a ground 

or condition for termination of parental rights. Id.

[17,18] Furthermore, while there is no requirement that the 

juvenile court must institute a plan for rehabilitation of a parent, if it does, the rehabilitation plan must be conducted under 

the direction of the juvenile court and must be reasonably 

related to the plan’s objective of reuniting parent with child. 

See In re Interest of Rylee S., 285 Neb. 774, 829 N.W.2d 445 

(2013). In analyzing the reasonableness of a plan ordered by a 

juvenile court, the question is whether a provision in the plan 

tends to correct, eliminate, or ameliorate the situation or condition on which the adjudication has been obtained. See id. If it 

does not, a court-ordered plan “‘is nothing more than a plan 

for the sake of a plan, devoid of corrective and remedial measures.’” Id. at 779, 829 N.W.2d at 449.

In In re Interest of J.S., A.C., and C.S., supra, the State filed 

a petition in January 1985, alleging that the children came 

within the meaning of § 43-247(3)(a). During the pendency of 

the case, one of the rehabilitative plan requirements was that 

the mother attend Alcoholics Anonymous meetings, despite the 

fact that the caseworker never saw the mother take a drink of 

alcohol, detected no odor of alcohol on her, and saw no alcohol 

in her home. The mother had never been evaluated for alcoholism or diagnosed as an alcoholic, and there was no professional 

recommendation that she undergo any course of treatment 

for alcoholism or take action for an alcohol-related problem. 
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According to the caseworker, the mother had some unidentified 

alcohol problem in the past, “‘[t]hat was like 1977, so it was 

a long time back.’” In re Interest of J.S., A.C., and C.S., 227 

Neb. at 260, 417 N.W.2d at 154.

On appeal, the Supreme Court held that the requirement 

concerning the Alcoholics Anonymous meetings failed to meet 

the test for materiality necessary in a rehabilitative plan. The 

court did not dispute that everyone should be fully informed 

about alcohol’s nature and the abuse of alcohol. However, a 

requirement that a parent obtain such knowledge as a condition 

to retaining parental rights, when the parent has no alcoholrelated problem, appeared to be a “somewhat draconian dictate.” Id. at 271, 417 N.W.2d at 160. The court concluded that 

under the circumstances, the mother’s attendance at Alcoholics 

Anonymous meetings was immaterial to the correction, elimination, or amelioration of a condition which resulted in the 

adjudication and, therefore, was irrelevant in the termination proceedings.

Likewise, here, there have been no allegations or evidence 

presented that Marquee Sr. has a drug problem or that drug 

testing would correct, eliminate, or ameliorate a condition 

that resulted in adjudication. The initial assessment worker 

acknowledged that the drug-related allegations in the petition 

were solely as to Elizabeth and that he had no specific allegations with respect to Marquee Sr. using drugs. The caseworker 

testified that her background check on Marquee Sr. revealed 

“multiple charges related to drugs and alcohol or possession” 

but that the most recent charge was in 2009 for possession of 

marijuana and having an open container of alcohol.

We note that the caseworker referred to “charges” and not 

“convictions,” so the record is not clear as to whether Marquee 

Sr. has ever been convicted of any drug or alcohol-related 

offenses. Regardless, the evidence shows that the most recent 

charge occurred in 2009, 12 years prior to the detention hearing. Although the order for a drug patch was contained in an 

ex parte temporary detention order and not a rehabilitation 
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plan, we find it comparable to In re Interest of J.S., A.C., 

and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987). There, the 

Supreme Court did not find that a 7-year-old unidentified alcohol problem would indicate a current alcohol problem, and we, 

too, do not find that a 12-year-old drug charge, alone, would 

indicate a current drug problem necessitating drug testing as a 

condition of Marquee Sr.’s reunifying with his child.

In addition, the conditions that led to removing Marquee Jr. 

from the home and the filing of the petition seeking adjudication were drug use and possession by Elizabeth. The petition 

did not contain any allegations against Marquee Sr. Thus, on 

this record, ordering Marquee Sr. to participate in drug testing 

will not remedy the condition that led to removal.

In short, the juvenile court lacked jurisdiction over Marquee 

Sr. at the time it ordered him to wear a drug patch because 

Marquee Jr. had not yet been adjudicated under § 43-247(3)(a). 

The court, therefore, had no authority to order him to participate in services at that time. Additionally, the court required 

that Marquee Sr. submit to drug testing without notice that it 

was contemplating doing so or holding an evidentiary hearing, at which to receive evidence that this requirement was 

appropriate and necessary. Finally, there was no evidence that 

this service was material to the allegations in the petition. We 

therefore vacate the provision requiring Marquee Sr. to wear a 

drug patch at this stage of the litigation.

CONCLUSION

We vacate the juvenile court’s order declining to place temporary physical custody of Marquee Jr. with Marquee Sr. and 

remand the cause with directions for further proceedings consistent with this opinion. In addition, we vacate the provision 

that Marquee Sr. wear a drug patch.

Vacated and remanded with directions.