In re Interest of A.A., 307 Neb. 817

Background

DHHS removed four children after mother threatened one with a knife; petition alleged the children were within § 43-247(3)(a) due to the mother’s fault or habits. Joshua, B.C.’s legal father by acknowledgment of paternity, was not living with the child when removal occurred and did not receive notice of the ex parte proceedings.
Joshua developed Guillain-Barré syndrome months earlier, returned home shortly before proceedings, and moved to intervene and seek temporary physical placement of his son after learning the child was in foster care.
Juvenile court twice heard Joshua’s placement motion; DHHS and the court expressed concerns about logistics and lack of a concrete safety/transition plan (including overnight care and emergency scenarios). Joshua declined to sign a medical release and had limited cooperation with DHHS communications.
On December 23, 2019, the juvenile court allowed Joshua to intervene but denied placement, finding him currently unfit largely because he had not cooperated in developing a plan; the court told DHHS to continue efforts to work with him. Joshua appealed that order.
While that appeal was pending, the juvenile court accepted the mother’s plea and adjudicated the children on February 27, 2020. The Nebraska Supreme Court reversed the December 23 denial of placement for procedural due process reasons and affirmed the adjudication.

Issues

Issue	Joshua's Argument	State's Argument	Held
Finality/appealability of Dec. 23 order denying placement	Dec. 23 order was a final, appealable determination of his custody rights	Denial merely extended earlier Oct. 17 temporary custody order and was not separately appealable	Dec. 23 order was final and appealable; court had jurisdiction over appeal (reversed on merits)
Subject-matter jurisdiction re: ex parte order and Oct. 17 temporary custody	Ex parte order and ensuing hearing were void for procedural defects, so subsequent orders are void	Irregularities in ex parte procedures do not divest juvenile court of subject-matter jurisdiction under § 43-247	Juvenile court had subject-matter jurisdiction; defects in ex parte order did not void subsequent temporary custody/order
Parental preference and notice: must State plead/ prove father unfit before denying placement?	When petition alleges only custodial parent, nonoffending parent is presumptively entitled to placement absent pleading and proof of that other parent’s unfitness; Joshua lacked notice that his fitness was at issue	State had temporary legal custody and an obligation as parens patriae to ensure safe placement; court permissibly required cooperation to develop a safety plan	Court violated procedural due process by finding Joshua unfit without notice or pleading; parental preference required placement with Joshua absent a proven rebuttal—remanded to grant temporary placement and develop transition plan
Effect of pending appeal on juvenile court’s power to adjudicate	Pending appeal of placement order divested juvenile court of authority to accept plea/adjudicate B.C.	Juvenile court retains supervisory authority under statutes to proceed with adjudication and disposition-related duties while appeal is pending	Juvenile court retained sufficient continuing jurisdiction to accept mother’s plea and adjudicate; adjudication affirmed
Disability and fitness standard	Joshua: disability alone cannot create presumption of unfitness and burden cannot shift to disabled parent to prove fitness	State/judge: practical concerns about accommodations and safety justified requiring detailed plans/cooperation	Court reaffirmed there is no presumption of unfitness based on disability; lack of detailed safety plan alone did not prove unfitness

Key Cases Cited

Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (standard and procedural protections for termination of parental rights)
Lassiter v. Department of Social Services, 452 U.S. 18 (U.S. 1981) (due process in parental-rights contexts)
Lehr v. Robertson, 463 U.S. 248 (U.S. 1983) (constitutional protection for biological fathers who have established familial relationship)
Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (parental rights and presumption in favor of fit parents)
Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental rights and state intrusion)
Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (balancing test for required procedural protections)
Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (U.S. 1950) (notice requirements under due process)
In re Interest of Sloane O., 291 Neb. 892 (Neb. 2015) (parental preference doctrine applied where allegations were against only one parent)
In re Interest of Stephanie H. et al., 10 Neb. App. 908 (Neb. Ct. App. 2002) (nonoffending parent entitled to prompt notice and burden on State to rebut parental preference)
In re Interest of Jaydon W. & Ethan W., 25 Neb. App. 562 (Neb. Ct. App. 2018) (parental preference, transition plans, and due process flexibility)
In re Interest of Jedidiah P., 267 Neb. 258 (Neb. 2004) (juvenile court continuing jurisdiction during appeal)
In re Interest of R.G., 238 Neb. 405 (Neb. 1991) (procedural requirements for juvenile proceedings)