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IN RE INTEREST OF AALIYAH M. ET AL. 63

Cite as 21 Neb. App. 63

As stated in the above analysis, we do not find any genuine 

issue of material fact regarding MMAStop’s alleged unjust 

enrichment. Therefore, we conclude the district court was correct in entering summary judgment in favor of MMAStop.

CONCLUSION

Based on our review of the record, the facts are undisputed 

that MMAStop acted in good faith without knowledge of 

Anselmo’s fraud or Abante’s mistake in paying MMAStop. 

Because MMAStop has legal justification to retain the funds 

it received from Abante, justice and fairness do not require it 

to return the money. Therefore, we affirm the decision of the 

district court.

Affirme

In re Interest of Aaliyah M. et a

children under 18 years of age

State of Nebraska, appellee, v

Ronald M., appella

___ N.W.2d ___

Filed July 23, 2013. No. A-12-979.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases 

de novo on the record and reaches its conclusions independently of the juvenile 

court’s findings.

2. Parental Rights. Parents have a recognized liberty interest in raising their 

children.

3. Parent and Child: Due Process. The parent-child relationship is afforded due 

process protection.

4. Constitutional Law: Due Process: Appeal and Error. The appellate courts 

apply a three-part test for due process protecting liberty interests: (1) Is there 

a protected liberty interest at stake? (2) If so, what procedural protections are 

required? (3) Given the facts of the case, was there a denial of the process that 

was due?

5. Words and Phrases. The word “or,” when used properly, is disjunctive.

6. Constitutional Law: Due Process: Parental Rights. In a hearing on the termination of parental rights without a prior adjudication hearing, where such 

termination is sought under Neb. Rev. Stat. § 43-292(1) through (5) (Cum. Supp. 

2012), such proceedings must be accompanied by due process safeguards.
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64 21 NEBRASKA APPELLATE REPORTS

Appeal from the Separate Juvenile Court of Lancaster 

County: Roger J. Heideman, Judge. Affirm

Joseph E. Dalton, of Dalton Law Office, P.C., L.L.O., for 

appellant.

Daniel Zieg, Deputy Lancaster County Attorney, for 

appellee.

Inbody, Chief Judge, and Irwin and Moore, Jud

Moore, Judge

INTRODUCTION

Ronald M. appeals from the order of the separate juvenile 

court of Lancaster County, which terminated his parental rights 

to his minor children. On appeal, Ronald assigns error to the 

court’s failure to advise him of his rights pursuant to Neb. Rev. 

Stat. § 43-279.01 (Reissue 2008) prior to the hearing on the 

State’s motion for termination of his parental rights. Because 

Ronald received the rights advisement at the time of the initial 

appearance hearing, his due process rights were not violated, 

and we affirm.

BACKGROUND

On October 1, 2009, the juvenile court held an initial 

appearance hearing on the State’s petition alleging that the 

minor children were juveniles as described in Neb. Rev. Stat. 

§ 43-247(3)(a) (Reissue 2008). The children’s mother appeared 

with her counsel, and Ronald appeared with his counsel. 

Before Ronald and the children’s mother entered their pleas, 

the court advised them of their rights and the possible dispositions of the case as required by § 43-279.01. In advising them, 

the court stated:

You are entitled to be represented by an attorney, counsel 

has been appointed for both of you in this matter, as well. 

You have a right to remain silent as to any questioning which might tend to prove you guilty of a criminal 

charge. You do have a right to a speedy adjudication hearing or a trial where the State must prove the allegations 

of [the adjudication petition] by a preponderance of the 
Decisions of the Nebraska Court of Appe

IN RE INTEREST OF AALIYAH M. ET AL. 65

Cite as 21 Neb. App. 63

evidence. That means what is alleged is more likely true 

than not true. You do have a right to confront and crossexamine the State’s witnesses. You also have a right to 

testify yourself or bring into court witnesses to testify for 

you. You do have a right to appeal the ruling of the Court 

and have a transcript of the proceedings prepared for that 

purpose. And you do have the right to a prompt hearing 

on the matter of temporary custody [i]f your children 

would be removed from your home.

After Ronald and the children’s mother both indicated that 

they understood their rights, the court advised them further, stating:

I also need to explain to you what could happen if the 

Court would take jurisdiction in that matter, which would 

happen if after a trial the State had met its burden of 

proof and had proven the allegations by a preponderance of the evidence, or if you admit those allegations. 

In those cases, we would then have a disposition hearing 

and the Court would enter a disposition order. That order 

would require you to comply with a rehabilitative plan 

that would be designed to correct the issues that had been 

adjudicate[d]. As part of that order your children could 

be allowed to remain in your home under the supervision of the Department of Health and Human Services. 

The order could provide that your children’s temporary 

custody be placed with the Department of Health and 

Human Services for placement in foster care, the care of 

an association or institution. It could also provide that 

your children be placed with a relative or other suitable 

family member or person.

I have to advise you that if the Court does adjudicate 

in the matter and you fail to correct the issues that had 

been adjudicated, at some point in time a motion to 

terminate your parental rights could be filed. The State 

statutes provide a specific time frame that a child or 

children remain in an out of home placement may serve 

as a basis for the filing of a motion to terminate parental 

rights. And that is if a child or children remain in an out 
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66 21 NEBRASKA APPELLATE REPORTS

of home placement fifteen out of the most recent twentytwo months.

And, finally, you could be required to contribute to the 

cost of any out of home placement of your children.

Ronald and the children’s mother then indicated that they 

understood the possible dispositions should the case be 

adjudicated.

After the juvenile court advised Ronald and the children’s 

mother of their rights and the possible dispositions, the court 

entered their denials and continued the case for further adjudication and a formal hearing. Although our record does not 

contain the adjudication proceedings, the minor children were 

ultimately adjudicated under § 43-247(3)(a).

On June 12, 2012, the State filed motions for termination of 

the parental rights of both Ronald and the children’s mother. 

In the motion seeking termination of Ronald’s parental rights, 

the State alleged that termination was proper under Neb. Rev. 

Stat. § 43-292(1), (2), (6), (7), and (9) (Cum. Supp. 2012) and 

that termination of his parental rights was in the children’s 

best interests.

On July 12, 2012, at the initial hearing on the State’s 

motions for termination of parental rights, the juvenile court 

again gave an advisement of rights and explained the possible 

dispositions pursuant to § 43-279.01. The children’s mother 

appeared at this hearing with her attorney and entered a denial 

to the allegations of the motion seeking to terminate her parental rights. Ronald did not appear at this hearing, but his counsel 

was present. The court entered denials to the allegations of the 

motions on behalf of both Ronald and the mother and set the 

matter for a formal contested termination hearing. Ronald was 

present and represented by counsel at the termination hearing 

on August 31, but the rights advisement was not repeated during the course of the termination hearing.

The juvenile court entered an order on September 25, 2012, 

terminating Ronald’s parental rights. The court found that the 

State had proved grounds for termination under § 43-292(2), 

(6), and (7) by clear and convincing evidence but had not 

proved grounds for termination under subsections (1) and 

(9) of that statute. The court also found that termination of 
Decisions of the Nebraska Court of Appe

IN RE INTEREST OF AALIYAH M. ET AL. 67

Cite as 21 Neb. App. 63

Ronald’s parental rights was in the children’s best interests. 

Ronald subsequently perfected his appeal to this court.

ASSIGNMENT OF ERROR

Ronald asserts that the juvenile court erred when it failed to 

advise him of his rights pursuant to § 43-279.01, resulting in 

a violation of procedural due process and a lack of fundamental fairness.

STANDARD OF REVIEW

[1] An appellate court reviews juvenile cases de novo on the 

record and reaches its conclusions independently of the juvenile court’s findings. In re Interest of Edward B., 285 Neb. 556, 

827 N.W.2d 805 (2013).

ANALYSIS

Ronald asserts that the juvenile court erred when it failed to 

advise him of his rights pursuant to § 43-279.01, resulting in 

a violation of procedural due process and a lack of fundamental fairness.

Section 43-279.01 provides:

(1) When the petition alleges the juvenile to be within 

the provisions of subdivision (3)(a) of section 43-247 or 

when termination of parental rights is sought pursuant to 

subdivision (6) or (7) of section 43-247 and the parent or 

custodian appears with or without counsel, the court shall 

inform the parties of the:

(a) Nature of the proceedings and the possible consequences or dispositions pursuant to sections 43-284, 

43-285, and 43-288 to 43-295;

(b) Right to engage counsel of their choice at their own 

expense or to have counsel appointed if unable to afford 

to hire a lawyer;

(c) Right to remain silent as to any matter of inquiry 

if the testimony sought to be elicited might tend to prove 

the parent or custodian guilty of any crime;

(d) Right to confront and cross-examine witnesses;

(e) Right to testify and to compel other witnesses to 

attend and testify;
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68 21 NEBRASKA APPELLATE REPORTS

(f) Right to a speedy adjudication hearing; and

(g) Right to appeal and have a transcript or record of 

the proceedings for such purpose.

[2-4] Parents have a recognized liberty interest in raising 

their children. In re Interest of Billie B., 8 Neb. App. 791, 601 

N.W.2d 799 (1999). The parent-child relationship is afforded 

due process protection. Id. The appellate courts apply a threepart test for due process protecting liberty interests: (1) Is there 

a protected liberty interest at stake? (2) If so, what procedural 

protections are required? (3) Given the facts of the case, was 

there a denial of the process that was due? Id.

This court has stated that § 43-279.01

protects parents’ liberty interests in raising their children 

by ensuring that a parent who is brought into court for 

a juvenile proceeding knows what is going on; knows 

all the possible outcomes of the case, including drastic 

measures such as termination of parental rights; and 

understands the rights that may be exercised during 

the case.

In re Interest of Billie B., 8 Neb. App. at 796, 601 N.W.2d 

at 803.

The record shows that Ronald and the children’s mother 

were both present at the October 2009 initial appearance hearing during the adjudication phase of the proceedings; that 

during the hearing, the juvenile court gave them the statutory rights advisement required by § 43-279.01; and that both 

Ronald and the children’s mother acknowledged those rights. 

Ronald was not, however, present at the July 2012 initial hearing on the State’s motion for termination of his parental rights. 

The children’s mother was present at that hearing and was 

given the § 43-279.01 rights advisement again at that time. 

Ronald was present at the later trial on the State’s motion for 

termination, but the rights advisement was not repeated during 

the actual termination trial.

Ronald argues that the juvenile court’s failure to give him 

the rights advisement during the termination phase of the proceedings violated his due process rights and that thus, the order 

terminating his parental rights should be vacated. In support 

of his argument, Ronald cites to In re Interest of Joelyann H., 
Decisions of the Nebraska Court of Appe

IN RE INTEREST OF AALIYAH M. ET AL. 69

Cite as 21 Neb. App. 63

6 Neb. App. 472, 574 N.W.2d 185 (1998), and In re Interest of 

A.D.S. and A.D.S., 2 Neb. App. 469, 511 N.W.2d 208 (1994). 

These cases are inapplicable to the present case. In In re 

Interest of Joelyann H., the rights advisement was never given 

at any stage of the juvenile court proceedings, and in In re 

Interest of A.D.S. and A.D.S., the parent was advised of some, 

but not all, of the rights set forth in § 43-279.01.

In this case, the complete advisement of rights under 

§ 43-279.01 was given to Ronald at the initial appearance 

hearing and he was advised of the nature of the juvenile court 

proceedings and the possible consequences, including the possibility of termination of his parental rights. Ronald’s brief 

ignores the advisement that he was given during the adjudication phase and does not contain any authority to support his 

argument that the rights advisement should have been given a 

second time. The issue here is whether, after having advised 

Ronald of his rights during the adjudication phase of the proceedings, the court was required to repeat the advisement during the termination phase of the proceedings.

[5] The State contends that § 43-279.01 requires that the 

rights advisement be given only once and does not require that 

the advisement, if given during the adjudication phase of the 

proceedings, be repeated during the termination phase. The 

State argues that the statute is disjunctive and requires that the 

advisement be given either during the adjudication phase or 

during the termination phase. The word “or,” when used properly, is disjunctive. Liddell-Toney v. Department of Health & 

Human Servs., 281 Neb. 532, 797 N.W.2d 28 (2011). We agree 

and conclude that § 43-279.01 requires that the rights advisement be given at either the adjudication phase or the termination phase, but does not require that the advisement be given 

at both phases.

[6] Our conclusion that the rights advisory does not need 

to be given at both the adjudication phase and the termination phase of the proceedings is consistent with the recognition that an action to terminate parental rights can be brought 

without the necessity of a prior adjudication, as long as due 

process safeguards are met. See, Neb. Rev. Stat. § 43-291 

(Reissue 2008); In re Interest of Joshua M. et al., 256 Neb. 
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70 21 NEBRASKA APPELLATE REPORTS

596, 591 N.W.2d 557 (1999). In a hearing on the termination 

of parental rights without a prior adjudication hearing, where 

such termination is sought under § 43-292(1) through (5), such 

proceedings must be accompanied by due process safeguards. 

In re Interest of Joshua M. et al., supra. In In re Interest of 

Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001), the 

parents were not given the statutory rights advisement at the 

adjudication phase, but did not appeal from the adjudication 

order. On appeal following the termination of their parental 

rights, we found that although the adjudication was improper, 

the juvenile court nevertheless had jurisdiction to terminate the 

parental rights under § 43-292(2) and (4), regardless of the lack 

of prior adjudication. And, although the parents were not given 

their due process rights at the adjudication hearing, because the 

parents were given an adequate rights advisement prior to the 

termination hearing, their due process rights were not violated 

in connection with the termination of their parental rights. In re 

Interest of Brook P. et al., supra.

In this case, Ronald was advised during the adjudication 

phase of the proceedings of his rights listed in § 43-279.01 and 

he was advised of the nature of the juvenile court proceedings 

and the possible consequences, including the possibility that 

his parental rights could ultimately be terminated. While the 

statutory rights advisory was not given to Ronald again during 

the termination phase, the juvenile court was not required to do 

so. Ronald does not allege that he was prejudiced in any way 

by the court’s failure to advise him again during the termination phase of the proceedings, and the record does not reflect 

that he was prejudiced in any way by not being advised of his 

rights a second time. Given the facts of this case, we find no 

violation of Ronald’s due process rights.

CONCLUSION

Ronald’s due process rights were not violated in this case. 

The termination of his parental rights is affirmed.

Affirme