909 N.W.2d 385
Neb. Ct. App.2018Background
- Father (Mathew W.) of two boys who were adjudicated under Neb. Rev. Stat. § 43-247(3)(a); children removed from mother in Aug 2013 and placed in foster care.
- Mathew had limited contact during a protection order that ran until June 2014, later moved away briefly, then returned and resumed involvement; formal visitation and assessments began in late 2015–2016.
- Mathew filed a motion for custody in Jan 2016 (denied); after further participation, psychological evaluation, and relocation to the children’s community, he filed a second custody motion in Apr 2017 (also denied pending behavioral assessments).
- Juvenile court suspended parental visitation in May 2016 due to the children’s behavioral problems; DHHS focused reunification efforts on the mother and had not implemented PCIT or bonding assessments for Mathew.
- The county court denied Mathew’s Apr 2017 motion; Mathew appealed, arguing the denial violated due process and that the State failed to prove forfeiture of his custodial rights by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Apr 2017 order denying Mathew custody was a final, appealable order | Mathew: order disturbed his substantial right to raise his children and was not merely temporary | State: order was temporary/review-based and did not affect a substantial right | Court: order was final and appealable (not merely a continuation or temporary restriction) |
| Whether the State proved by clear and convincing evidence that Mathew forfeited his custodial right | Mathew: State failed to prove substantial, continuous, repeated neglect or complete indifference | State: Mathew had long periods of nonparticipation (argued ~28 months) and other conduct supporting forfeiture; best interests favored staying in foster care | Court: State did not meet the clear-and-convincing standard; no finding of unfitness or forfeiture; Mathew presumptively entitled to custody |
| Whether the juvenile court properly denied custody based on children’s best interests and stability in foster care | Mathew: parental-preference presumption governs; best-interests comparison is secondary unless parental right is negated | State: children bonded to foster family and more stable there, so custody should remain with foster parents | Court: best-interests argument is premature absent forfeiture; parental preference prevails unless rebutted by clear and convincing evidence |
| Appropriate remedy on remand | Mathew: request immediate custody or orderly transition | State: need for transition plan due to length of placement and behavioral issues | Court: reverse and remand with directions to grant motion and implement a transition plan (not immediate abrupt transfer) |
Key Cases Cited
- In re Interest of Sloane O., 291 Neb. 892 (Neb. 2015) (de novo review of juvenile cases; parental-preference and due-process framework)
- In re Interest of Octavio B., et al., 290 Neb. 589 (Neb. 2015) (finality and substantial-right test for juvenile orders)
- In re Interest of Cassandra B. & Moira B., 290 Neb. 619 (Neb. 2015) (orders barring parental actions pending review can be final if duration is indefinite until next review)
- In re Interest of Danaisha W., et al., 287 Neb. 27 (Neb. 2013) (temporary suspension of visitation that is limited in time may not be appealable)
- In re Interest of Lakota Z. & Jacob H., 282 Neb. 584 (Neb. 2011) (clear-and-convincing proof required to show parental unfitness or forfeiture)
- In re Guardianship of Robert D., 269 Neb. 820 (Neb. 2005) (forfeiture may be shown by complete indifference over a long period)
- In re Guardianship of D.J., 268 Neb. 239 (Neb. 2004) (parental preference and standard for depriving custody)
- In re Interest of Lilly S. & Vincent S., 298 Neb. 306 (Neb. 2017) (burden on State and presumption favoring reunification)
- In re Interest of Xavier H., 274 Neb. 331 (Neb. 2007) (parental preference cannot be overcome merely because a stranger could provide a ‘better’ environment)
- In re Interest of Veronica H., 272 Neb. 370 (Neb. 2006) (juvenile code’s purpose: protect juveniles’ best interests while respecting parental rights)