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IN RE INTEREST OF JAYDON W. & ETHAN W.

Cite as 25 Neb. App. 562

In re Interest of Jaydon W. & Ethan

children under 18 years of 

State of Nebraska, appellee,

v. Mathew W., appellan

___ N.W.2d ___

Filed February 20, 2018. Nos. A-17-497, A-17-498.

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. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, 

as in any other appeal, before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final order entered 

by the court from which the appeal is taken.

4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error.

Juvenile court proceedings are special proceedings, and an order in a 

juvenile special proceeding is final and appealable if it affects a parent’s 

substantial right to raise his or her child.

5. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

6. Juvenile Courts: Parental Rights: Parent and Child: Time: Final 

Orders. Whether a substantial right of a parent has been affected by an 

order in juvenile court litigation is dependent upon both the object of the 

order and the length of time over which the parent’s relationship with 

the juvenile may reasonably be expected to be disturbed.

7. Juvenile Courts: Judgments: Parental Rights. A review order in a 

juvenile case does not affect a parent’s substantial right if the court 

adopts a case plan or permanency plan that is almost identical to the 

plan that the court adopted in a previous disposition or review order.

Nebraska Supreme Court Online Library

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

02/27/2018 08:12 AM CST
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8. Juvenile Courts: Judgments: Appeal and Error. A dispositional order 

which merely continues a previous determination is not an appealable order.

9. Child Custody: Visitation: Final Orders: Appeal and Error. Orders 

which temporarily suspend a parent’s custody and visitation rights do 

not affect a substantial right and are therefore not appealable.

10. Parental Rights. The right of parents to maintain custody of their child 

is a natural right, subject only to the paramount interest which the public 

has in the protection of the rights of the child.

11. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition.

12. Parental Rights: Due Process: Appeal and Error. In deciding due 

process requirements in a particular case, an appellate court must 

weigh the interest of the parent, the interest of the State, and the risk 

of erroneous decision given the procedures in use. Due process is flexible and calls for such procedural protections as the particular situation demands.

13. Child Custody: Parental Rights. Under the parental preference principle, a parent’s natural right to the custody of his or her child trumps the 

interests of strangers, including the State, to the parent-child relationship 

and the preferences of the child.

14. Constitutional Law: Public Policy: Child Custody: Parental Rights.

Unless it has been affirmatively shown that a biological or adoptive 

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

Constitution and sound public policy protect a parent’s right to custody 

of his or her child.

15. Constitutional Law: Parental Rights: Presumptions. Absent circumstances which justify terminating a parent’s constitutionally protected 

right to care for his or her child, due regard for the right requires that 

a biological or adoptive parent be presumptively regarded as the proper 

guardian for his or her child.

16. Juvenile Courts: Parental Rights. The parental preference doctrine is 

applicable even to an adjudicated child.

17. Parental Rights: Proof. Forfeiting the right to custody under the 

parental preference doctrine must be proved by clear and convincing evidence.

18. Parental Rights. Parental rights may be forfeited by a substantial, continuous, and repeated neglect of a child and a failure to discharge the 

duties of parental care and protection.

19. Parental Rights: Proof. Substantial, continuous, and repeated neglect 

of a child may be established by the complete indifference of a parent 

for a child’s welfare over a long period of time.
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20. Child Custody: Parental Rights: Proof. The initial burden of proving parental unfitness or forfeiture of a parent’s right to custody is on 

the State.

21. Constitutional Law: Parental Rights. Whether termination of parental 

rights is in a child’s best interests is not simply a determination that 

one environment or set of circumstances is superior to another, but it 

is instead subject to the overriding recognition that the relationship 

between parent and child is constitutionally protected.

22. 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 or there has been a forfeiture.

23. 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.

24. ____: ____. 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.

25. Juvenile Courts: Minors. The foremost purpose and objective of the 

Nebraska Juvenile Code is to promote and protect the juvenile’s best 

interests, and the juvenile code must be construed to assure the rights of 

all juveniles to care and protection.

Appeal from the County Court for Platte County: Frank J

Skorupa, Judge. Reversed and remanded with directions

Susanne M. Dempsey-Cook for appellant.

Breanna Anderson, Deputy Platte County Attorney, for 

appellee.

Eugene G. Schumacher, of Sipple, Hansen, Emerson, 

Schumacher & Klutman, guardian ad litem.

Pirtle, Riedmann, and Arterburn

Riedmann, J

INTRODUCTION

Mathew W. appeals the orders of the county court for Platte 

County, sitting as a juvenile court, which denied his motion 

for custody of his minor children who had been adjudicated 
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Cite as 25 Neb. App. 562

under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013) as to their 

mother. Mathew argues that the court erred in concluding that 

he had forfeited his right to custody. We agree, and therefore, 

we reverse the order of the juvenile court and remand the 

cause with directions consistent with this opinion.

BACKGROUND

Mathew is the father of the two children at issue here: Jaydon 

W., born in July 2008, and Ethan W., born in September 2009. 

Mathew and the children’s mother, Kylee M., were married in 

2000 and divorced in 2007; however, they attempted to coparent the boys until Ethan was around 18 months old. Mathew 

remained in Columbus, Nebraska, where Kylee and the boys 

have continuously resided, until 2012 or 2013, describing himself as the “primary parent” of the children during that time. In 

June 2013, Kylee obtained a protection order which prohibited 

Mathew from having contact with her or the boys. Because 

of the protection order, Mathew moved to Georgia for several 

months and stopped paying child support during that time. 

Once the order expired, around June 2014, Mathew returned to 

Nebraska and resided in Omaha.

Jaydon and Ethan were removed from Kylee’s care in August 

2013 and adjudicated under § 43-247(3)(a) in November. They 

were placed in a foster home at that time. According to 

Mathew, at some point after August, he became aware that 

the children were in the custody of the State and attempted to 

contact the State on numerous occasions, but he was apparently 

unsuccessful, and as he noted, he was unable to have contact 

with the children until June 2014 due to the protection order. 

Between February 2015 and February 2016, however, Kylee 

would try to talk with Mathew at least four or five times per 

week and would take the children to visit him at his home in 

Omaha at least twice per month when they would all spend the 

night at his house.

On August 31, 2015, Jaydon and Ethan were placed back 

in Kylee’s home, but they were removed again on October 15 

due to allegations of physical abuse by Kylee’s husband. When 
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Mathew learned that the children had been removed from 

Kylee’s care again, he called the Department of Health and 

Human Services (DHHS) and asked to become involved in the 

case. Beginning that month, Mathew was permitted supervised 

visits with the children twice per week, traveling from Omaha 

to Columbus for a weekday visit and having the boys visit his 

home on Saturdays.

In January 2016, Mathew filed a motion for custody in 

which he requested that the court issue an order placing custody of the children with him. The State objected to the motion 

because Mathew had just recently become involved in the case 

and because placing the children with Mathew would require 

another move for the children. The current and former DHHS 

caseworkers testified at the hearing on the motion that they 

each believed that a longer transition period was preferable to 

allow the children to rebuild their relationship with Mathew 

before granting him custody of the boys. Kylee testified that 

she did not object to Mathew’s motion and that despite having obtained protection orders against Mathew in the past, she 

opined that the children would not be in danger if they lived 

with him. After the hearing, the juvenile court entered an order 

denying Mathew’s motion.

Thereafter, Mathew was allowed overnight visits on the 

weekends in addition to his weekday visits. During that time 

period, the boys were also having separate visits with Kylee 

twice per week. Unfortunately, both boys began displaying 

significantly increased behaviors during that time, so in May 

2016, the court suspended all visitation with both parents. 

Psychological evaluations were then completed on Kylee, 

Mathew, Jaydon, and Ethan. Jaydon’s evaluation recommended 

“Parent-Child Interactive Therapy” (PCIT) for him with Kylee 

and separately with Mathew. Because the case plan goal 

remained reunification with Kylee, DHHS elected to focus on 

her and initially arranged PCIT for just her and Jaydon. Jaydon 

began acting out, however, and therapy was placed on hold 

pending Kylee’s evaluation.
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Mathew’s psychological evaluation and parenting risk 

assessment was completed over the course of several days in 

September and October 2016 with a psychologist. The psychologist diagnosed Mathew with adult attention deficit hyperactivity disorder, and he found that Mathew showed “significant defensiveness” and “was guarded in any personal wrong 

doings involving his children” and displayed “some antisocial, narcissistic, and turbulent” personality traits. However, 

Mathew was not diagnosed with a personality disorder, and the 

psychologist was supportive of PCIT for Mathew and the children and recommended that Mathew be “brought up to speed” 

on the children’s individual needs.

In April 2017, Mathew filed a second motion for custody of 

the children. By that time, Mathew had moved to Columbus 

in order to be closer to the children, had his own residence, 

and was employed full time. He had resumed paying child 

support and was attempting to “catch up” on the arrearage. DHHS continued to object to placing the children with 

Mathew, claiming that allowing the boys to remain in their 

foster home would be in their best interests. The caseworker 

testified at the hearing that the boys’ behaviors immediately 

and significantly improved after visitation with both parents 

was suspended in May 2016 and that although there was a 

slight regression by Jaydon in November or December when 

PCIT with Kylee began, both boys exhibited much better 

behavior during the 2016-17 school year than they had in the 

spring of 2016.

In a subsequent order, the juvenile court denied Mathew’s 

motion for custody. The court noted that visitation had been 

suspended in May 2016 because of the children’s behavior 

and that the cause of the behavioral issues had not yet been 

resolved or adequately addressed. Thus, the court instructed 

DHHS “to immediately and as quickly as possible address 

those matters by way of [any necessary] assessments.” Pending 

those assessments, Mathew’s motion for custody was denied. 

Mathew timely appeals to this court.
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Cite as 25 Neb. App. 562

ASSIGNMENT OF ERROR

Mathew assigns that the juvenile court violated his due 

process rights and erred in denying his motion for custody of 

the children.

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 Sloane O., 291 Neb. 

892, 870 N.W.2d 110 (2015).

ANALYSIS

Jurisdiction.

Pursuant to this court’s request, the parties’ briefs addressed 

the issue of whether the juvenile court’s April 2017 order denying Mathew’s motion for custody was a final, appealable order. 

The State and the guardian ad litem contend that the court’s 

order did not affect a substantial right and was a temporary 

order, and, as such, it was not a final, appealable order and this 

court lacks jurisdiction over this appeal. Conversely, Mathew 

contends that the order does affect a substantial right and that 

therefore, it is final and appealable.

[2-4] In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an 

appellate court to determine whether it has jurisdiction over the 

matter before it. In re Interest of Octavio B. et al., 290 Neb. 

589, 861 N.W.2d 415 (2015). For an appellate court to acquire 

jurisdiction of an appeal, there must be a final order entered 

by the court from which the appeal is taken. Id. Juvenile court 

proceedings are special proceedings, and an order in a juvenile 

special proceeding is final and appealable if it affects a parent’s substantial right to raise his or her child. See id. Thus, 

if the juvenile court’s order denying Mathew’s motion for 

custody of the children affected his substantial right to raise 

Jaydon and Ethan, the order was final and appealable. But if 

the order did not affect a substantial right, we lack jurisdiction 

and must dismiss the appeal.
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[5-8] A substantial right is an essential legal right, not a 

mere technical right. In re Interest of Octavio B. et al., supra. 

Whether a substantial right of a parent has been affected by an 

order in juvenile court litigation is dependent upon both the 

object of the order and the length of time over which the parent’s relationship with the juvenile may reasonably be expected 

to be disturbed. Id. A review order does not affect a parent’s 

substantial right if the court adopts a case plan or permanency 

plan that is almost identical to the plan that the court adopted 

in a previous disposition or review order. Id. Thus, a dispositional order which merely continues a previous determination 

is not an appealable order. Id.

The question here is whether the denial of Mathew’s April 

2017 motion was merely a continuation of the denial of his 

January 2016 motion. We conclude it was not. At the time 

Mathew first moved for custody of the children, he had just 

recently become part of the case and begun formal visitation 

with the children. In denying the motion, the court noted that 

Mathew waited more than 2 years before participating in the 

case. In addition, the court observed that placing the children 

with Mathew would entail removing the children from their 

community and locating new health care providers, while the 

permanency plan remained reunification with Kylee who continued to reside in Columbus.

At the time Mathew filed his second motion, however, he 

had moved to Columbus and had been participating in the case 

for more than 2 years. By that time, he had been permitted 

visitation, including overnights, and had completed a psychological evaluation and parenting risk assessment, which supported his participation in PCIT with the children. As a result, 

the juvenile court had different factors to consider when 

assessing Mathew’s second motion, and some of the concerns 

expressed in the order denying Mathew’s first motion had 

been alleviated by April 2017, namely, Mathew had moved to 

the children’s community and had gradually been transitioning 

to playing a larger role in their lives. Therefore, we conclude 
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that the order from which Mathew has appealed was not a 

mere continuation of a prior order.

The State additionally asserts that this court lacks jurisdiction over the appeal because the order from which the appeal 

was taken was “temporary in nature.” Brief for appellee at 12. 

We disagree.

[9] Whether a substantial right of a parent has been affected 

by an order in juvenile court litigation is dependent upon 

both the object of the order and the length of time over which 

the parent’s relationship with the juvenile may reasonably be 

expected to be disturbed. In re Interest of Danaisha W. et al., 

287 Neb. 27, 840 N.W.2d 533 (2013). Orders which temporarily suspend a parent’s custody and visitation rights do not 

affect a substantial right and are therefore not appealable. Id. 

In In re Interest of Danaisha W. et al., supra, the Nebraska 

Supreme Court held that an order imposing restrictions on a 

parent’s visitation rights was temporary in nature and therefore did not affect a substantial right so as to be appealable 

when it was in effect only until the scheduled hearing on a 

motion to terminate parental rights, which was to be held 

approximately 5 weeks later.

To the contrary, in In re Interest of Cassandra B. & Moira 

B., 290 Neb. 619, 861 N.W.2d 398 (2015), the juvenile court’s 

order prohibited a parent from homeschooling one of the 

children, pending further order of the court. On appeal, the 

Supreme Court noted that the juvenile court’s order gave no 

indication that the court would revisit the issue prior to the 

next review hearing which was scheduled for approximately 

6 months in the future. The Supreme Court also observed that 

because juvenile courts are statutorily required to review the 

cases of adjudicated juveniles every 6 months, virtually no 

order would have a longer duration than that. The court therefore concluded that the order was not temporary in nature and 

was a final, appealable order.

We conclude that the instant case is more akin to In re 

Interest of Cassandra B. & Moira B., supra, than to In re 
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Interest of Danaisha W. et al., supra. Here, the juvenile court’s 

order denied Mathew’s motion for custody of the children 

pending assessments to determine the cause of their behavioral 

issues. The order instructed DHHS to complete the necessary 

assessments, and there was no indication of the timeframe by 

which the assessments would be completed. This is particularly 

relevant given that visitation had been suspended since May 

2016, and by April 2017, a cause had yet to be determined and 

visitation remained suspended. Thus, it does not appear that 

the cause of the children’s behaviors is an issue that can be 

quickly determined and resolved.

Additionally, there was no indication that Mathew had any 

control over when the assessments could be completed or 

had the power to gain custody of the children before the next 

scheduled review hearing. See In re Interest of Nathaniel P., 

22 Neb. App. 46, 846 N.W.2d 681 (2014) (order suspending 

mother’s right to direct child’s education was temporary in 

nature because mother had power to regain her rights before 

next scheduled review hearing). We therefore conclude that 

the denial of Mathew’s motion for custody was of sufficient 

duration as to render the order final and appealable. As a 

result, this court has jurisdiction to consider the merits of 

Mathew’s argument.

Motion for Custody.

Mathew argues that the juvenile court violated his due process rights and erred when it denied his motion for custody of 

the children without sufficient evidence proving that he had 

forfeited his right to custody. We agree.

[10-12] The right of parents to maintain custody of their 

child is a natural right, subject only to the paramount interest which the public has in the protection of the rights of the 

child. In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 

110 (2015). The concept of due process embodies the notion 

of fundamental fairness and defies precise definition. Id. In 

deciding due process requirements in a particular case, we 
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must weigh the interest of the parent, the interest of the State, 

and the risk of erroneous decision given the procedures in use. 

Id. Due process is flexible and calls for such procedural protections as the particular situation demands. Id.

[13-16] Under the parental preference principle, a parent’s 

natural right to the custody of his or her child trumps the 

interests of strangers, including the State, to the parent-child 

relationship and the preferences of the child. Id. Therefore, 

unless it has been affirmatively shown that a biological or 

adoptive parent is unfit or has forfeited his or her right to 

custody, the U.S. Constitution and sound public policy protect 

a parent’s right to custody of his or her child. Id. Absent circumstances which justify terminating a parent’s constitutionally protected right to care for his or her child, due regard 

for the right requires that a biological or adoptive parent be 

presumptively regarded as the proper guardian for his or her 

child. Id. The doctrine is applicable even to an adjudicated 

child. Id.

[17] There are no allegations in the present case that Mathew 

is unfit to have custody of the children. Therefore, the question 

before us is whether the State proved by clear and convincing 

evidence that Mathew forfeited his right to custody. See In re 

Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 

174 (2011) (proof of parental unfitness or forfeiture of right to 

custody requires proof by clear and convincing evidence). The 

juvenile court’s conclusion in April 2017 that there had been 

a forfeiture was based primarily on the time period of August 

9, 2013 (the filing of the petition against Kylee), to December 

2015 (the date Mathew’s visitation was ordered).

[18-20] Generally, parental rights may be forfeited by a substantial, continuous, and repeated neglect of a child and a failure to discharge the duties of parental care and protection. In 

re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 

(2005). Substantial, continuous, and repeated neglect of a child 

may be established by the complete indifference of a parent for 

a child’s welfare over a long period of time. See id. The initial 
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burden of proving parental unfitness or forfeiture of a parent’s 

right to custody is on the State. See In re Interest of Lilly S. & 

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

In the instant case, we note that the State argues that the 

juvenile court properly denied Mathew’s motion for custody, 

because refusing to move the children from their current foster 

home into Mathew’s home was in the children’s best interests—they have lived in their foster home for nearly 4 years, 

are bonded to their foster parents, and have “consistency and 

stability” there. Brief for appellee at 17. 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.

[21,22] 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. 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.

[23,24] 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., 268 Neb. 239, 682 N.W.2d 

238 (2004). In other words, 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., supra. Stated another way, 
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“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. In re Interest of Xavier H., supra.

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

the children’s best interests are served by remaining in their 

current foster home because it would be “‘better’” for them, 

but, rather, whether the presumption that their best interests are 

served by reuniting with Mathew has been rebutted by clear 

and convincing evidence that Mathew is unfit or has forfeited 

his right to custody. See id. at 350, 740 N.W.2d at 26. As noted 

above, there are no allegations that Mathew is unfit and the 

juvenile court made no such finding. Accordingly, we must 

determine whether the State produced clear and convincing 

evidence that Mathew substantially, continuously, and repeatedly neglected the children and failed to discharge the duties 

of parental care and protection. We conclude that the evidence 

falls short of this standard.

In support of its argument that the evidence supports a finding that Mathew forfeited his right to custody, the State continually references the “28 months” that Mathew failed to participate in the case, referencing the time period from August 

2013, when the children were removed from Kylee’s care, 

until December 2015, when Mathew first appeared in this case. 

See brief for appellee at 17, 22, and 24. We initially observe 

that there was a protection order in place until June 2014, 

prohibiting Mathew from having contact with the children. 

The record is unclear as to what contact, if any, Mathew had 

with the children after the expiration of the protection order, 

but Mathew’s uncontroverted testimony established that he 

attempted, unsuccessfully, to contact the State on many occasions regarding the children. And at least as early as February 

2015, Kylee and Mathew were speaking by telephone several 
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times per week and Kylee regularly took the children to visit 

him at his home in Omaha. Thus, Mathew was having consistent contact with the children during that time.

The children were placed back with Kylee in August 2015, 

and then once Mathew learned they had been removed again 

in October, he contacted DHHS and began participating in the 

case. Since that time, Mathew has driven to Columbus from 

Omaha to participate in visitation, made himself available 

for visits with the children at his residence, and completed a 

psychological evaluation and parenting risk assessment. We 

note that despite Mathew’s efforts, DHHS has repeatedly 

elected to focus on Kylee, rather than Mathew, because the 

goal of the case remained reunification with her. Thus, despite 

Jaydon’s psychological evaluation recommending PCIT with 

Mathew, the psychologist’s support for Mathew’s participation 

in PCIT, and the juvenile court’s scheduling a review hearing 

for January 2017 in order to assess the progress being made 

in PCIT for both Kylee and Mathew, DHHS has never even 

attempted to begin PCIT between Mathew and either child. 

Nor had DHHS scheduled a bonding assessment to be completed between Mathew and the children, as it had done for 

Kylee and the children, despite affirming that it could have 

done so in order to evaluate the relationship between Mathew 

and the boys and gain recommendations for strengthening 

their bond. As it stood, at the April 2017 hearing on Mathew’s 

motion for custody, Mathew had not had significant visitation with the children since May 2016 through no fault of his 

own. Yet at that time, the court was still instructing DHHS 

to determine the cause of behavioral issues that peaked 11 

months earlier.

Further, Mathew acknowledged that when he moved to 

Georgia, he stopped paying child support and fell behind on his 

obligation. Thus, he served 11 days in jail in October 2015 as 

a result. However, at the time of his psychological evaluation, 

he had resumed paying his child support obligation and was 

attempting to “catch up” on the arrearage.
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In short, upon our de novo review of the record, we cannot 

find clear and convincing evidence of a long-term complete 

indifference toward the children. See In re Guardianship of 

Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005). See, also, 

In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 

(2004); Gray v. Hartman, 181 Neb. 590, 596, 150 N.W.2d 120, 

123 (1967) (“forfeiture of parental rights may be effected by 

the indifference of a parent for a child’s welfare over a long 

period of time”); Raymond v. Cotner, 175 Neb. 158, 163, 120 

N.W.2d 892, 895 (1963) (forfeiture established by parent’s 

“complete indifference” to child’s welfare and finding father 

had not forfeited right to custody despite not having visited 

the child for 9 years), overruled on other grounds, Bigley v. 

Tibbs, 193 Neb. 4, 225 N.W.2d 27 (1975), overruled on other 

grounds, Nielsen v. Nielsen, 207 Neb. 141, 296 N.W.2d 483 

(1980). While Mathew’s own actions caused Kylee to seek a 

protection order, thereby preventing him from having contact 

with the boys for 1 year, and he certainly could have made a 

more significant effort upon expiration of the protection order, 

we cannot find that the evidence clearly and convincingly 

establishes circumstances which justify terminating Mathew’s 

constitutionally protected right to care for his children; and 

absent such circumstances, he is presumptively regarded as the 

proper guardian for his children. See In re Interest of Lilly S. & 

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

We understand the juvenile court’s reluctance to uproot the 

children from their long-term foster home, especially given 

their recent behavioral concerns. However, the question is not 

whether the children’s best interests would be served by placing their custody with Mathew. Mathew enjoys a constitutional 

right to custody of Jaydon and Ethan that may be disrupted 

only upon a finding that he is unfit or has forfeited his right to 

custody. Finding neither, we conclude that the juvenile court 

erred in denying the motion for custody.

[25] That is not to say, however, that the juvenile court is 

required to order that the children be turned over to Mathew 
- 577 -

Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

IN RE INTEREST OF JAYDON W. & ETHAN W.

Cite as 25 Neb. App. 562

immediately. As stated above, the children were adjudicated 

in November 2013 based upon acts of Kylee. As adjudicated 

children, the juvenile court has jurisdiction over them pursuant to § 43-247(3). And although the parental preference doctrine applies to adjudicated children, the “foremost purpose 

and objective of the Nebraska Juvenile Code is to promote 

and protect the juvenile’s best interests, and the juvenile code 

must be construed to assure the rights of all juveniles to care 

and protection.” In re Interest of Veronica H., 272 Neb. 370, 

375, 721 N.W.2d 651, 654 (2006). Given the length of separation between Mathew and the children and the length of time 

they have resided with their foster parents, it is in the best 

interests of the children to implement a transition plan before 

returning them to Mathew’s physical custody. Accordingly, we 

reverse the order and remand the cause with directions to the 

juvenile court to grant the motion and order implementation 

of a transition plan to effectuate placement of the children 

with Mathew.

CONCLUSION

We find that the order from which the appeal was taken was 

a final, appealable order and that thus, this court has jurisdiction over the appeal. Upon our de novo review of the record, 

we conclude that the State failed to adduce clear and convincing evidence that Mathew was either unfit or forfeited his 

right to custody of the children. We therefore reverse the order 

of the juvenile court and remand the cause with directions 

consistent with this opinion.

Reversed and remanded with d