In re Interest of A.A. , 307 Neb. 817 ( 2020 )


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    www.nebraska.gov/apps-courts-epub/
    12/11/2020 08:07 AM CST
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    IN RE INTEREST OF A.A. ET AL.
    Cite as 
    307 Neb. 817
    In re Interest of A.A. et al., children
    under 18 years of age.
    State of Nebraska, appellee, v.
    Joshua C. appellant.
    ___ N.W.2d ___
    Filed November 20, 2020.   Nos. S-20-009, S-20-244.
    1. Jurisdiction: Appeal and Error. A jurisdictional question that does
    not involve a factual dispute is a question of law that an appellate court
    resolves independently of the conclusions reached by the trial court.
    2. Constitutional Law: Due Process. The determination of whether the
    procedures afforded to an individual comport with constitutional require-
    ments for due process presents a question of law.
    3. 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; how-
    ever, 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.
    4. Jurisdiction: Final Orders: Appeal and Error. Under 
    Neb. Rev. Stat. § 25-1911
     (Reissue 2016), for an appellate court to acquire jurisdiction
    of an appeal, there must be a final judgment or final order entered by the
    tribunal from which the appeal is taken.
    5. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals
    with the court’s ability to hear a case.
    6. ____: ____. Subject matter jurisdiction is the power of a tribunal to
    hear and determine a case of the general class or category to which the
    proceedings in question belong and to deal with the general subject mat-
    ter involved.
    7. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile
    and the juvenile’s parents, the court’s only concern is whether the condi-
    tion in which the juvenile presently finds himself or herself fits within
    the asserted subsection of 
    Neb. Rev. Stat. § 43-247
     (Reissue 2016).
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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    IN RE INTEREST OF A.A. ET AL.
    Cite as 
    307 Neb. 817
    8. Constitutional Law: Due Process: Parent and Child. The relationship
    between parent and child is constitutionally protected and cannot be
    affected without procedural due process.
    9. Due Process. The concept of due process embodies the notion of funda-
    mental fairness and defies precise definition.
    10. ____. Due process is flexible and calls for such procedural protections
    as the particular situation demands.
    11. Constitutional Law: Parent and Child. The mere existence of a bio-
    logical link does not merit substantial constitutional protection; rather,
    the parental liberty interest in a child stems from the more enduring
    relationship developed upon a biological parent’s commitment to the
    responsibilities of parenthood.
    12. Constitutional Law: Due Process: Parent and Child. An unwed bio-
    logical father who has grasped the opportunity to establish a familial
    relationship with his biological child has an interest in personal contact
    with his child, which interest is given substantial protection under the
    Due Process Clause of the 14th Amendment.
    13. Parental Rights. When parental control fails, the State must play its
    part as parens patriae.
    14. ____. The rights of parenthood, even of a fit parent, are not beyond
    limitation by the State’s powers and duties as parens patriae.
    15. ____. Where a child is cared for by a fit parent, the State’s interest in
    caring for the child is de minimis.
    16. Parental Rights: Child Custody. Only the paramount interest which
    the public has in the protection of the rights of the child can subjugate
    the rights of parents to maintain custody of their children.
    17. ____: ____. The parental preference doctrine holds that in a child cus-
    tody 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.
    18. 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
    natural right to the custody of a child requires that a parent be presump-
    tively regarded as the proper guardian.
    19. Parental Rights: Child Custody: Proof. Only exceptional circum-
    stances 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.
    20. Juvenile Courts: Jurisdiction: Child Custody: Proof. When the
    allegations of a petition for adjudication invoking the jurisdiction of
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    IN RE INTEREST OF A.A. ET AL.
    Cite as 
    307 Neb. 817
    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 physi-
    cal or psychological harm to the child or a substantial likelihood of
    such harm.
    21.   Parental Rights: Child Custody. Because parental preference derives
    not simply from biology but from the enduring relationship developed
    upon a biological parent’s commitment to the responsibilities of parent-
    hood, children removed from their homes due to the fault or habits of
    one parent need not immediately and without some minimal investiga-
    tion be placed with the other biological parent whose status as having an
    actual relationship of parental responsibility is unknown.
    22.   Juvenile Courts: Jurisdiction: Parental Rights: Child Custody. The
    nonoffending parent’s exercise of the parental preference of custody is
    not entirely unfettered during the juvenile court’s continuing jurisdiction
    under the juvenile code.
    23.   Juvenile Courts: Parental Rights. The juvenile court, in the exercise
    of its parens patriae responsibilities, may develop a transition plan con-
    stituting a reasonable intrusion of limited duration into the nonoffending
    parent’s rights to autonomy in the care and custody of the child.
    24.   Juvenile Courts: Due Process: Parental Rights: Child Custody. It
    does not violate due process for the juvenile court in its determination
    of the child’s best interests and in its role as adjudicator of the custody
    rights between two parents to require the nonoffending parent’s coopera-
    tion with goals of reunification back into the home from where the child
    was taken.
    25.   Due Process: Notice. Procedural due process generally requires that
    notice be given of such a nature as to reasonably convey the required
    information.
    26.   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 sub-
    stantial likelihood of such harm.
    27.   ____: ____: ____. 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 place-
    ment decisions.
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    IN RE INTEREST OF A.A. ET AL.
    Cite as 
    307 Neb. 817
    28. Handicapped Persons: Parent and Child: Parental Rights:
    Presumptions. There is no presumption that a disabled parent is unfit,
    that a disabled parent 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 because a parent
    is disabled.
    29. Handicapped Persons: Parent and Child: Presumptions. The simple
    fact that a parent is disabled does not overcome the presumption that the
    parent is a better caretaker of the parent’s own child than the State is.
    30. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error. A
    juvenile court is not wholly divested of jurisdiction during the pendency
    of an appeal from a final order.
    31. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. The extent
    of the continuing jurisdiction of the separate juvenile courts and the
    county courts sitting as juvenile courts during the pendency of an
    appeal is not without limits and must be determined by the facts of
    each case.
    32. Juvenile Courts: Jurisdiction: Parental Rights. The juvenile courts’
    continuing jurisdiction does not include the power to terminate a juve-
    nile’s relationship with the child’s parents.
    33. Judges: Recusal: Time. The issue of judicial disqualification is timely
    if submitted at the earliest practicable opportunity after the disqualifying
    facts are discovered.
    34. Judges: Recusal: Presumptions. There exists a presumption of judicial
    impartiality, and a party alleging that a judge acted with bias or preju-
    dice bears a heavy burden of overcoming that presumption.
    35. Judges: Recusal. A judge’s opinions based on facts presented dur-
    ing a hearing, even if those opinions are stated before the hearing’s
    conclusion, are not indicative of bias by the judge unless they display
    a deep-seated favoritism or antagonism that would make fair judg-
    ment impossible.
    Appeal from the Separate Juvenile Court of Lancaster
    County: Reggie L. Ryder, Judge. Judgment in No. S-20-009
    reversed, and cause remanded with directions. Judgment in
    No. S-20-244 affirmed.
    Matt Catlett, of Law Office of Matt Catlett, for appellant.
    Douglas J. Peterson, Attorney General, C.J. Roberts, Special
    Assistant Attorney General, and Patrick Condon, Lancaster
    County Attorney, and Haley N. Messerschmidt for appellee.
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    IN RE INTEREST OF A.A. ET AL.
    Cite as 
    307 Neb. 817
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. NATURE OF CASE
    Upon allegations that the mother had endangered her 6-year-
    old child who was living with her, the Nebraska Department
    of Health and Human Services (DHHS) was given temporary
    legal and physical custody of the child and his half siblings,
    who were placed together in temporary foster care. No allega-
    tions were made against the child’s legal father, who did not
    at that time live with the child and did not have notice of the
    hearing on temporary custody. There was an acknowledgment
    of paternity, and the father had lived with and helped support
    the child and his mother for approximately 5 years up until
    the father developed Guillain-Barre syndrome approximately
    7 months before the petition for adjudication was filed. After
    the father became aware that his child was in foster care, he
    moved for temporary physical placement, which the juvenile
    court denied. The court reasoned that the father was “unfit” for
    placement at that time due to his unwillingness to cooperate
    with DHHS in forming a placement plan that addressed con-
    cerns stemming from a physical disability.
    In case No. S-20-009, the father appeals the denial of his
    motion for placement, arguing that the State did not sustain
    its burden to affirmatively prove him unfit by a preponder-
    ance of the evidence before depriving him of his fundamental
    liberty and privacy interests in caring for and guiding his child
    without undue interference. He also challenges the jurisdic-
    tion of the juvenile court based upon filing dates and scriv-
    ening details pertaining to the ex parte order removing the
    children from the mother’s home. While his appeal in case
    No. S-20-009 was pending, the court proceeded with adjudica-
    tion of the child over the father’s objection. In the appeal in
    case No. S-20-244, the father argues that his appeal in case
    No. S-20-009 divested the juvenile court of jurisdiction to
    issue the adjudication order.
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    IN RE INTEREST OF A.A. ET AL.
    Cite as 
    307 Neb. 817
    II. BACKGROUND
    Joshua C., the legal father of B.C., appeals in case No.
    S-20-009 from the juvenile court’s order denying his motion
    for temporary physical placement of B.C. in his home pending
    the adjudication of B.C. under a petition making allegations
    of endangerment by the mother. In case No. S-20-244, Joshua
    appeals from the court’s subsequent order adjudicating B.C.
    due to the fault or habits of B.C.’s mother. We have consoli-
    dated the two cases, Nos. S-20-009 and S-20-244, for purposes
    of oral argument and disposition.
    1. October 14, 2019, Ex Parte
    Emergency Temporary Order
    (a) Motion
    On October 14, 2019, a Monday, a motion for an ex parte
    order for emergency temporary custody was file stamped in
    the separate juvenile court of Lancaster County. Three chil-
    dren, A.A., M.A., and B.C., were listed in the caption. In the
    motion, the county attorney asserted that “the above-named
    juveniles are endangered in such conditions or surroundings
    that the juveniles’ welfare and best interest require immedi-
    ate removal.”
    The affidavit in support of the motion, dated October 11,
    2019, listed in its caption four children, D.W., A.A., M.A.,
    and B.C.
    In the affidavit, Officer Jarid Freyermuth stated that on
    October 11, 2019, he was dispatched on a report of “belated
    child neglect” in Lincoln, Nebraska. D.W., age 12, had reported
    that his mother had threatened him with a steak knife an hour
    prior, during the course of an argument about not properly
    storing an open bag of hotdogs. The mother had reportedly
    cornered D.W. while armed with the knife and, when he put his
    hands on her upper chest area to defend himself, placed the tip
    of the knife on his shoulder and said, “‘[I]f you touch me I’ll
    stab your hands.’”
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    IN RE INTEREST OF A.A. ET AL.
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    Freyermuth reported that D.W.’s siblings, A.A., M.A., and
    B.C., corroborated D.W.’s description of the incident and that
    the mother ultimately admitted to arming herself with the knife
    and threatening D.W. Freyermuth reported that she denied,
    however, “touching D.W. with the knife even when faced with
    the fact that D.W. had an injury resembling being touched with
    the knife.”
    According to the affidavit, D.W. was turned over to his
    father, while an employee of DHHS took emergency custody
    of the other three children. The mother was taken to jail on
    October 11, 2019, upon charges of felony child abuse, terroris-
    tic threats, and use of a weapon to commit a felony.
    Freyermuth averred that the children were in such condi-
    tion or surroundings that their welfare required the court to
    assume temporary custody immediately by endorsement upon
    the summons or separate order directing that the children be
    taken into custody at once, with proper arrangements being
    made for their temporary custody and care pending a hearing
    on a petition.
    (b) Order
    The juvenile court signed an ex parte order for emergency
    temporary custody on Saturday, October 12, 2019. The order
    was not file stamped until Monday, October 14.
    The caption for the order listed A.A., M.A., and B.C. D.W.
    was not named in the caption. The order described that pur-
    suant to 
    Neb. Rev. Stat. § 43-248
    (2) (Cum. Supp. 2018), the
    “above-named juveniles’ needs require that they be taken into
    emergency custody and placed with [DHHS].”
    Pursuant to the ex parte order, a temporary custody hearing
    was scheduled for October 16, 2019. Notice of the hearing was
    to be sent to the parents and guardians identified in the affida-
    vit. Joshua was not identified.
    The court found in the ex parte order that DHHS could,
    at its discretion, return the children home pending the place-
    ment hearing. The ex parte order was to expire if the county
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    attorney failed to file a petition by October 15, 2019, at 4:30
    p.m. A guardian ad litem was appointed.
    2. October 14, 2019, Petition
    A petition was filed in juvenile court on Monday, October
    14, 2019, at approximately 4 p.m. All four children, A.A.,
    M.A., B.C., and D.W., were named in the caption. The peti-
    tion alleged that A.A., M.A., B.C., and D.W. were within the
    meaning of 
    Neb. Rev. Stat. § 43-247
    (3)(a) (Reissue 2016), by
    reason of the fault or habits of their mother, or that they were
    in a situation injurious to life or limb or their health or morals,
    based on the incident on October 11 in which she threatened
    one of them with a knife. The adjudication was based on no
    other events. No allegations were made against Joshua.
    While the alleged father of D.W. was listed in the petition
    as a person to be served with a summons, no other father was
    identified. Likewise, only the father of D.W., and the children’s
    mother, were identified in the praecipe for summons, dated
    October 17, 2019, to be served with copies of the petition. The
    record does not reflect that the court published notice, because
    a parent’s name was unknown, as provided for in 
    Neb. Rev. Stat. § 43-268
     (Reissue 2016).
    3. October 17, 2019, Temporary
    Custody Order
    A hearing on the motion for temporary custody was held on
    October 16, 2019. Neither Joshua nor his counsel was present.
    The appellate record does not contain a transcription of the
    October 16 hearing.
    In an order on October 17, 2019, the court found that
    although DHHS was making reasonable efforts to eliminate
    the need for out-of-home placement, remaining in the home
    at that time would be contrary to the children’s health, safety,
    and welfare, and that it was in their best interests to remain in
    out-of-home placement. The court ordered that temporary legal
    and physical custody remain with DHHS. The mother was
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    given reasonable rights of supervised parenting time so long
    as she was not in custody.
    Only A.A., M.A., and B.C. were listed in the caption for the
    order of temporary custody. Joshua was not served with a copy
    of the order.
    4. Joshua’s Intervention and Request for
    Placement on October 30, 2019
    On October 30, 2019, Joshua, through his attorney, filed a
    motion for leave to intervene and for immediate placement of
    B.C. with him. In the motion, Joshua alleged that he was B.C.’s
    biological father and that with the exception of a 1-year separa-
    tion from B.C.’s mother, from B.C.’s birth in August 2013 until
    July 2019, B.C. and his mother had lived with Joshua, during
    which time Joshua had provided continuous care and support
    for B.C.
    Joshua did not explain when he received actual notice of
    the juvenile proceedings relating to B.C. Joshua described only
    that on or about October 29, 2019, a DHHS employee had
    informed him that DHHS would not consider placing B.C. in
    his care and custody.
    Joshua did not in the motion challenge the prior orders of the
    court on due process or any other grounds. He did not move for
    legal custody.
    Hearings on the motion were held on November 21 and
    December 23, 2019.
    (a) November 21, 2019, Hearing
    At the November 21, 2019, hearing, Joshua testified that
    he has lived for approximately 8 years in Superior, Nebraska,
    where he owns a four-bedroom house in the center of town.
    Joshua testified that he was in a romantic relationship with
    B.C.’s mother from approximately July 2012 until July 2019.
    During that time, they conceived B.C., who was born in
    August 2013. Joshua testified that he had signed an acknowl-
    edgment of paternity but had forgotten to bring it to the
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    November 21 hearing. There was no evidence of an adjudica-
    tion of custody rights between the two parents.
    B.C. and B.C.’s mother lived with Joshua during the entirety
    of their relationship with the exception of a year when she and
    B.C. had moved out, 2 or 3 years before the hearing, and then
    moved back in.
    Joshua described that in late February 2019, he developed
    Guillain-Barre syndrome. He was hospitalized for a month and
    then spent approximately 6 months in rehabilitation centers
    until returning home in September. It was during his illness
    that his relationship with B.C.’s mother ended.
    At the time of the hearing, Joshua had been home for
    approximately 2 months. B.C. visited Joshua 5 to 10 times
    while Joshua was residing at rehabilitation centers. Joshua tes-
    tified that he had seen B.C. only twice since returning home,
    during two weekend visits arranged with B.C.’s current place-
    ment caretaker.
    Joshua lives alone, but has a 15-year-old child who stays
    with him every Wednesday overnight and every other Thursday
    through Sunday.
    As of the time of the hearing, Joshua was still unable to get
    around without a wheelchair. He had the aid of home health
    care in the mornings. He was unable to fully sit himself up in
    his wheelchair without assistance. Before developing Guillain-
    Barre syndrome, Joshua worked as a pipewelder. Since his
    illness, he has relied on Social Security disability payments.
    Joshua testified that he was financially able to provide for B.C.
    Joshua did not believe his physical limitations impaired his
    ability to properly parent or supervise B.C.
    Joshua testified that his grandfather had agreed to take B.C.
    to and from school. The school bus stopped only “three blocks
    away.” Joshua could also reach out to his mother, if she was
    not working, as well as to “[f]riends and just people in the
    community,” for school transportation. Joshua named a couple
    of people who had volunteered to help. Joshua explained that
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    the transportation company he uses would be able to transport
    B.C. to any appointments.
    As far as feeding B.C., Joshua testified that “[t]here’s the
    local grocery store and then there’s the Dollar General.” Joshua
    testified that he was not yet cooking any of his own meals, but
    that his mother, his grandfather, and the aides had all said they
    would be willing to prepare meals for B.C. Alternatively, he
    could order takeout or delivery.
    Joshua described a nightly routine for B.C. that would
    involve homework, television, showering, and brushing teeth.
    He did not foresee its being a problem that he generally did not
    have assistance overnight.
    Joshua said that DHHS had been in contact with him about a
    placement plan. There had been some discussion about placing
    B.C.’s half siblings with Joshua as well. Joshua was willing to
    serve as such a placement.
    The plan that was developed was originally going to involve
    having Joshua’s mother stay overnight. At that time, his mother
    was spending the night in Joshua’s home to help care for him.
    She had been staying the night at Joshua’s house from the time
    of his return from the rehabilitation centers up until approxi-
    mately 2 weeks before the November 21, 2019, hearing.
    Joshua explained that as of early November 2019, his mother
    no longer wished to stay overnight. Joshua did not reach out
    to notify DHHS that his mother would no longer be staying
    the night, but confirmed that was true when DHHS called
    and asked.
    Joshua testified that he was willing to have a conversation
    with DHHS about any logistical concerns of how to address
    emergencies or other childcare issues that might arise in the
    middle of the night. Joshua conceded that he had refused to
    sign a medical release to allow DHHS to review his medical
    records relating to his Guillain-Barre syndrome prognosis,
    explaining, “I’m just not prepared to do it right now, okay.”
    At the close of the day on November 21, 2019, the court
    noted that the hearing would be continued in order to allow
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    the parties to present additional evidence. The court told
    Joshua that he had “come a long way.” The court stated that it
    needed to see the acknowledgment form. The court continued
    to explain that, also, “we need to make sure there’s a plan,”
    elaborating:
    [W]e’ve talked about evenings. We haven’t talked about
    weekends when he’s not in school. We haven’t talked
    about a snow day that we’re probably going to have. We
    haven’t talked about two or three weeks of not being in
    school during Christmas. We’ve got to make sure we’ve
    got a plan. It sounds like you’ve thought about it a little
    bit but I’d want to make sure before I’m going to say he’s
    in your care, that we’ve got a daily consistent plan and
    schedule. Who’s going to be coming over. Who can we
    call at 2:00 in the morning if he has a nose bleed, a fever.
    If he falls out of bed. If he’s scared and I understand you
    would like to be there and right now you’re limited on
    doing that. So we’ve got to make sure we’ve got a safe
    and smart plan . . . . I’ve got to make sure we’ve got, you
    know, a plan that’s — that’s really pretty much consist­
    ent. Who’s going to be on call at 2:00 in the morning.
    Who’s going to be there on the weekends. Who’s going
    to be preparing the meals because on the weekends we’ve
    got breakfast, lunch, we’ve got dinner. And we’ve got
    snacks. We’ve got a lot of things that six year olds need
    help with so we’ll certainly hear more about that at the
    next hearing[.]
    (b) December 23, 2019, Hearing
    At the continuation of the hearing on December 23, 2019,
    Joshua offered into evidence the acknowledgment of pater-
    nity containing the notarized signatures of both Joshua and
    B.C.’s mother in August 2013, which the court received. The
    exhibit reflects that the acknowledgment had been filed with
    DHHS as required by 
    Neb. Rev. Stat. § 43-1408.01
     (Reissue
    2016). As soon as the acknowledgment was received, the
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    court orally pronounced that Joshua’s motion to intervene was
    granted, and the only motion still pending was placement.
    (i) Joe Knott’s Testimony
    Joe Knott, an employee of DHHS, testified that an inspec-
    tion of Joshua’s home found it to be in appropriate condition
    and that DHHS had previously “ironed out a plan” with Joshua
    for placement of the children with him around November
    4, 2019. That plan, however, had “deteriorated” by the time
    of the scheduled placement due to the sudden departure of
    Joshua’s mother as an overnight caretaker. Accordingly, place-
    ment was delayed.
    Knott checked in a few more times throughout that week
    to see if there had been any change in the situation. After a
    couple of conversations in which Joshua indicated nothing had
    changed, Knott was unable to reach Joshua. Knott testified that
    he “left voicemails trying to figure out a way that we could
    remedy the situation and kind of make sure that we had some-
    thing that was in place so that it would allow us to move for-
    ward with placement, but I did not hear back from [Joshua].”
    At some point, B.C., A.A., and M.A. were placed together in
    another home.
    Since the unsuccessful prior attempts at moving forward
    with placement with Joshua, communication between Joshua
    and DHHS had involved one conversation about the two visits
    with B.C. and B.C.’s half siblings facilitated by B.C.’s current
    placement and one conversation about “placement and things
    that we’d like to see.” After that, Knott understood Joshua had
    “been advised by his attorney not to speak with us.”
    According to Knott, B.C.’s mother had indicated “she did
    not want any of her ex’s to have placement of the children.”
    This conversation apparently occurred after the November 21,
    2019, hearing. She had originally told Knott that B.C. was
    “well bonded” with Joshua.
    Knott described that if Joshua were willing to work with
    DHHS, DHHS would gather information about reasonable
    accommodations that Joshua would be making “in terms of
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    finding individuals that are willing [and] able to assist him
    with the placement to make sure that it can be done effec-
    tively, and that there’s no safety concerns for [B.C.,] who’s six
    years old.” Knott opined that “just being able to identify those
    individuals that would be willing and able to help in certain
    situations I think would be very helpful and go a long way
    into helping us develop and firm up a plan.” Knott noted that
    DHHS would want to run background checks on any poten-
    tial caretakers.
    Since the November 21, 2019, hearing, Knott and a case-
    worker had reached out to Joshua’s attorney via email several
    times, requesting that they have discussions to work out a
    placement plan or visitation. Neither Joshua nor his attorney
    had responded to such requests. Knott expressed having certain
    concerns until DHHS could work with Joshua in developing a
    plan regarding the logistics of placement, mainly about how
    Joshua would handle hypothetical emergent situations that
    could arise in the middle of the night. Knott testified that he
    believed that because B.C. was a state ward, DHHS had certain
    obligations to ensure the safety of any placement—apparently
    including with a noncustodial parent against whom no allega-
    tions had been made. According to Knott, “the biggest barrier”
    to placement with Joshua was “not being able to have an open
    and honest conversation” with him.
    Part of Knott’s testimony was adduced upon questioning
    by the juvenile court judge. The judge asked if, since the
    prior hearing, Knott had been given any more specifics about
    assistance with meal preparation or general preparedness to
    care for B.C. over the upcoming holiday break, which Knott
    testified he had not. Further, Knott agreed, upon the judge’s
    questioning, that it was possible “that had [Joshua] cooperated
    with [DHHS] and [its] efforts from the last hearing to come
    up with a plan, [Knott] could’ve been in a position today to
    recommend [B.C.] be placed with [Joshua] in his home today.”
    Knott also agreed with the judge that it was “fair to say” that
    Joshua’s “unwillingness to do that has delayed in progress in
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    that regard.” Finally, the court asked several questions of Knott
    regarding DHHS’ requirements, responsibilities, and expecta-
    tions once a child becomes a state ward. Knott affirmed that
    DHHS felt a responsibility to be able to follow up on place-
    ments, going to the home at least once a month for private con-
    versations with the child and caregivers to see how things were
    going. Knott testified he was concerned that Joshua would not
    allow that.
    (ii) B.C.’s Mother’s Testimony
    B.C.’s mother testified at the hearing that during the course
    of her relationship with Joshua, which she said ended in May
    2019, they had arguments that sometimes became “physical.”
    She described one incident over winter break in 2015 when
    Joshua was intoxicated and threatened to shoot himself, shoot
    her, and then shoot the children. It was unclear if Joshua was
    brandishing a weapon at that time. The police intervened,
    arrested Joshua, and confiscated his weapons. She testified that
    Joshua was initially charged with terroristic threats but that the
    charges might have been dropped.
    B.C.’s mother testified that her “only concern” with B.C.’s
    being placed in Joshua’s care was “if he’s mentally capable of
    handling certain situations.” When asked, she also affirmed she
    was concerned with excessive drinking. She testified that when
    she moved out, Joshua had approximately 13 guns locked in a
    gun safe he had acquired after the terroristic threats incident.
    (c) December 23, 2019, Order Granting
    Intervention and Denying Placement
    At the close of the evidence, Joshua’s counsel argued that
    a parent who is not the subject of a petition to adjudicate the
    child retains constitutional parental preference such that a child
    removed from the home under a petition alleging fault or habits
    of the other parent must automatically be placed with the par-
    ent who is not the subject of the petition.
    Joshua’s counsel referred to the motion for placement as
    being “actually a little bit awkward because the Court has
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    not acquired jurisdiction over this child”—an allegation that
    was apparently elaborated upon in the trial brief that is not in
    the record. Also, Joshua’s counsel referred to the court’s “argu-
    mentative suggestions — suggestive and leading questions”
    of Knott. But Joshua’s counsel did not move to disqualify the
    juvenile court judge.
    The court disagreed with Joshua’s arguments, including that
    it had to place B.C. with him because of the parental prefer-
    ence doctrine. The court stated that based on the evidence pre-
    sented, Joshua was “currently a parent who’s unfit to have his
    child placed in his care.” It also found that it was not in B.C.’s
    best interests for the placement to occur.
    In support of these conclusions, the court cited “[t]he lack
    of any ability to try to overcome the concerns.” The court
    explained that it had “made it very clear” a month before
    what its concerns were and that DHHS had “made a number
    of efforts to try to overcome those issues and concerns and
    unfitness.” The court stated, “[T]here hasn’t been any coopera-
    tion whatsoever.”
    In an order filed on December 23, 2019, the court found
    that Joshua was B.C.’s father and allowed Joshua to intervene.
    The same order memorialized the court’s denial of Joshua’s
    motion for placement. The court found that Joshua was not
    “currently a fit and proper parent to have custody,” noting that
    Joshua “has not been willing to work with DHHS to develop
    a plan to overcome the barriers to approving that placement.”
    Due in part to such lack of cooperation, the court found that “it
    would not be safe” for B.C. “to be placed in the home of his
    father at this time.” Such placement would be “contrary to the
    health, safety, and welfare” of B.C. and would not be in B.C.’s
    best interests.
    The court ordered DHHS to continue to make efforts to work
    with Joshua to overcome the barriers to placement, noting that
    once a plan is in place that ensures the safety and well-being
    of B.C., Joshua could petition the court for placement and a
    further hearing would be timely scheduled. Joshua appealed the
    December 23, 2019, order.
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    5. February 27, 2020, Order
    of Adjudication
    Subsequently, the juvenile court held a hearing on adjudica-
    tion. Joshua objected to the hearing on the ground that his pend-
    ing appeal of the denial of his motion for placement divested
    the court of jurisdiction to adjudicate B.C. The court found the
    case law relied upon by Joshua inapposite and found that the
    mother had an interest in case progression so that a rehabilita-
    tive plan could be developed to place B.C. back in her care as
    soon as possible. The juvenile court accepted the mother’s plea
    of no contest to the petition for adjudication.
    In an order dated February 27, 2020, the court overruled
    Joshua’s objection. The court articulated as part of its findings
    that “[t]he current goal in this case is to return the juveniles to
    the custody of [their mother].”
    That same date, the court issued an order adjudicating B.C.
    and his half siblings as lacking proper parental care by reason
    of the fault or habits of their mother and determining that they
    were in a situation dangerous to their life or limb or injurious
    to their health or morals. At some point, the court had placed
    B.C. and his half siblings in a different foster care home from
    where they were first placed. The court ordered all prior tem-
    porary orders to remain in effect.
    III. ASSIGNMENTS OF ERROR
    In his appeal in case No. S-20-009 from the denial of his
    motion for placement, Joshua assigns, restated, that the juvenile
    court (1) erred by denying his motion for temporary placement;
    (2) was biased when considering his motion for placement; (3)
    erred by imposing, contrary to his superior parental right to
    custody and due process, the burden of proof on Joshua in rela-
    tion to the placement decision; (4) treated him differently from
    the father of D.W., in violation of equal protection principles;
    and (5) issued void orders in the ex parte order of emergency
    temporary custody and the October 16, 2019, continuation of
    such temporary custody.
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    In his appeal from the adjudication order in case No.
    S-20-244, Joshua assigns that (1) the juvenile court erred in
    overruling his objection to proceeding with the hearing on the
    petition as to B.C. on the ground that the juvenile court had
    no jurisdiction to adjudicate B.C. due to the pending appeal in
    case No. S-20-009; (2) the juvenile court’s order on February
    27, 2020, adjudicating B.C. is void for lack of jurisdiction; and
    (3) the juvenile court judge’s remark that “[t]he current goal
    in this case is to return the juveniles to the custody of [their
    mother]” was prejudicial and required disqualification.
    IV. STANDARD OF REVIEW
    [1] A jurisdictional question that does not involve a factual
    dispute is a question of law that an appellate court resolves
    independently of the conclusions reached by the trial court. 1
    [2] The determination of whether the procedures afforded to
    an individual comport with constitutional requirements for due
    process presents a question of law. 2
    [3] 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. 3
    V. ANALYSIS
    1. Jurisdiction Over Appeal
    [4] We first address whether we have jurisdiction over the
    order denying Joshua’s motion for placement that is being
    appealed in case No. S-20-009. Under 
    Neb. Rev. Stat. § 25-1911
    (Reissue 2016), for an appellate court to acquire jurisdiction
    1
    See In re Interest of Enyce J. & Eternity M., 
    291 Neb. 965
    , 
    870 N.W.2d 413
     (2015).
    2
    In re Interest of Kane L. & Carter L., 
    299 Neb. 834
    , 
    910 N.W.2d 789
    (2018).
    3
    In re Interest of Karlie D., 
    283 Neb. 581
    , 
    811 N.W.2d 214
     (2012).
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    of an appeal, there must be a final judgment or final order
    entered by the tribunal from which the appeal is taken. 4 Also,
    
    Neb. Rev. Stat. § 43-2
    ,106.01(1) (Reissue 2016) provides that
    “[a]ny final order or judgment entered by a juvenile court
    may be appealed to the Court of Appeals in the same manner
    as an appeal from district court to the Court of Appeals,” and
    § 43-2,106.01(2)(c) specifies that such appeal may be taken by
    “[t]he juvenile’s parent.”
    Because the juvenile proceedings are still ongoing, there
    has yet to be a judgment. 5 The State asserts that the December
    23, 2019, order denying Joshua’s motion for placement is
    not a final, appealable order as defined by 
    Neb. Rev. Stat. § 25-1902
     (Supp. 2019). The State acknowledges that orders
    governing temporary placement away from a parent ordinarily
    constitute final orders pursuant to § 25-1902(1)(b), as orders
    affecting a substantial right made during a special proceed-
    ing. 6 It argues, however, that the denial of Joshua’s motion for
    placement was a mere continuation of the court’s prior order
    on October 17 of temporary physical custody remaining with
    DHHS, outside of the mother’s home, and that the December
    23 order therefore did not have a substantial effect on Joshua’s
    substantial rights.
    We have said that when an “‘order from a juvenile court
    is already in place and a subsequent order merely extends
    the time for which the previous order is applicable, the sub-
    sequent order by itself does not affect a substantial right and
    does not extend the time in which the original order may
    be appealed.’” 7 But when we have thus found a subsequent
    4
    State v. Lotter, 
    301 Neb. 125
    , 
    917 N.W.2d 850
     (2018).
    5
    See 
    Neb. Rev. Stat. § 25-1301
    (1) (Reissue 2016).
    6
    See, In re Interest of R.R., 
    239 Neb. 250
    , 
    475 N.W.2d 518
     (1991); 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).
    7
    See, e.g., In re Guardianship of Rebecca B. et al., 
    260 Neb. 922
    , 931, 
    621 N.W.2d 289
    , 295 (2000).
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    order to “‘merely extend[] the time’” of the prior order, the
    interests of the person who wished to appeal the subsequent
    order had been specifically adjudicated by the prior order and
    that person had notice of the prior proceedings and accordingly
    had the opportunity to appeal it. 8
    Here, the October 17, 2019, order was issued before Joshua
    intervened. He was given no notice of the proceedings leading
    up to the October 17 order, did not participate in that place-
    ment hearing, and was not given notice of the order itself.
    Furthermore, in making its placement decision in the October
    17 order, the court had not been presented with Joshua as a
    possible placement. The juvenile court had not been asked,
    pursuant to a motion for placement, to adjudicate B.C.’s tem-
    porary custody in light of the parental preference doctrine as
    applies to Joshua. Rather, the court considered only whether
    the mother was at that time unfit for physical custody such that
    B.C. should remain outside of her home. Different rights were
    affected by the October 17 order maintaining B.C.’s temporary
    custody outside of the mother’s home and the December 23
    order denying Joshua’s motion for temporary custody.
    The court’s December 23, 2019, order denying Joshua’s
    motion for custody did not merely extend the time of the appli-
    cability of the October 17 order of temporary custody outside
    of the mother’s home and in foster care. Instead, it was the
    juvenile court’s first adjudication of Joshua’s parental right to
    temporary physical custody of B.C. over the State’s interest in
    custody. The December 23 order presented Joshua’s first oppor-
    tunity to appeal its determination of that issue. The December
    23 order was final under § 25-1902(1)(b), and we have jurisdic-
    tion over the appeal in case No. S-20-009.
    2. Subject Matter Jurisdiction
    Joshua makes several arguments that seek to vacate the
    underlying order granting the State temporary legal custody
    over B.C., which necessitated Joshua’s motion for placement
    8
    See id.
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    so that B.C. would not be in foster care. He believes that the
    October 17, 2019, order is “void” 9 for lack of subject matter
    jurisdiction. We disagree.
    Joshua’s reasoning is complicated. He argues that the
    October 14, 2019, ex parte order of emergency temporary cus-
    tody was void for four reasons. First, he argues there was no
    order of temporary custody filed within 48 hours as required
    by 
    Neb. Rev. Stat. § 43-250
    (2) (Cum. Supp. 2018), which, he
    notes, does not expressly exclude nonjudicial days. Second,
    Joshua asserts that the ex parte order was void because there
    was no petition filed in accordance with § 43-247 and 
    Neb. Rev. Stat. § 43-261
    (1)(a) (Reissue 2016) at the time of the ex
    parte order and because there is no statute authorizing a juve-
    nile court to issue such an order in the absence of a petition.
    Third, Joshua takes issue with the fact that the motion for the
    ex parte order was file stamped at the exact same time as the
    order granting the same, this allegedly being “problematic” 10
    and implicating procedural due process because the order was
    not in response to a motion. Fourth, he alleges that because the
    ex parte order did not attach the affidavit, it is “impossible to
    know for certain” 11 whether the affidavits relied on by the court
    were made part of the record of the proceedings as required in
    In re Interest of R.G. 12
    The alleged voidness of the ex parte order in turn alleg-
    edly rendered the October 16, 2019, hearing void, which,
    in turn, allegedly rendered the October 17 order continuing
    temporary custody void, “because it was premised on a hear-
    ing that, legally, was never ordered to occur.” 13 Joshua asserts
    that it does not matter that a petition for adjudication under
    § 43-247(3)(a) was filed between the filing of the ex parte
    9
    Brief for appellant in case No. S-20-009 at 19.
    10
    Id. at 48.
    11
    Id.
    12
    In re Interest of R.G., supra note 6.
    13
    Brief for appellant in case No. S-20-009 at 20.
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    order and the hearing, because the untimely petition could not
    “resuscitate a void order” and “there is no statutory or judicial
    authority in Nebraska for a juvenile court ordering or holding a
    hearing on the issue of a juvenile’s pre-adjudication detention
    or placement in the absence of a prior, valid pre-adjudication
    detention or placement order or a properly filed motion by
    the State.” 14
    [5,6] Subject matter jurisdiction deals with the court’s abil-
    ity to hear a case. 15 Subject matter jurisdiction is the power of
    a tribunal to hear and determine a case of the general class or
    category to which the proceedings in question belong and to
    deal with the general subject matter involved. 16
    [7] We have held that to obtain jurisdiction over a juvenile
    and the juvenile’s parents, the court’s only concern is whether
    the condition in which the juvenile presently finds himself or
    herself fits within the asserted subsection of § 43-247. 17 The
    juvenile court’s subject matter jurisdiction in this case was
    conferred by § 43-247, which provides that “[t]he juvenile
    court . . . shall have . . . jurisdiction of ” any juvenile defined
    in § 43-247(3) and of the “parent, guardian, or custodian.”
    Section 43-247(3) describes the circumstances of the juvenile,
    including one who is in a situation dangerous to life or limb
    or injurious to the health or morals of such juvenile. Section
    43-247(5) describes “[t]he parent, guardian, or custodian of
    any juvenile described in this section.”
    While procedural due process requires that a petition for
    adjudication allege specific factual allegations as to why the
    juvenile falls under § 43-247(3)(a), 18 it has been held that
    14
    Id. at 42 (emphasis omitted).
    15
    In re Interest of Devin W. et al., 
    270 Neb. 640
    , 
    707 N.W.2d 758
     (2005).
    16
    
    Id.
    17
    See, In re Interest of Sloane O., 
    291 Neb. 892
    , 
    870 N.W.2d 110
     (2015); In
    re Interest of Devin W. et al., supra note 15.
    18
    See, e.g., In re Interest of Trenton W. et al., 
    22 Neb. App. 976
    , 
    865 N.W.2d 804
     (2015).
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    even inadequacies in the petition pertaining to parental notice
    do not divest the juvenile court of its subject matter jurisdic-
    tion. 19 Not all juveniles over which the juvenile court exercises
    subject matter jurisdiction pursuant to § 43-247 have been
    temporarily removed from the home pursuant to an ex parte
    order. There is nothing in the juvenile code indicating that the
    procedures governing ex parte orders are integral to the juve-
    nile court’s subject matter jurisdiction to subsequently issue a
    temporary custody order following a petition for adjudication
    under § 43-247 and an evidentiary hearing.
    Irregularities pertaining to the ex parte custody order could
    not render the October 17, 2019, order void. We need not
    address the merits of these alleged irregularities leading to
    the October 14 temporary ex parte order that is no longer in
    effect and is moot. 20 The ex parte order has no bearing on the
    December 23 order on Joshua’s motion for placement. The
    juvenile court has jurisdiction to determine the proper place-
    ment of B.C. while the juvenile case brought under the petition
    for adjudication under § 43-247(3)(a) remains open. We pro-
    ceed to the merits of its December 23 order.
    3. Placement
    Joshua argues that when a petition under § 43-247(3)(a) is
    based on the conduct of one parent, unless the State affirma-
    tively pleads and proves the unfitness of the other parent who
    does not reside in the home the child was removed from, the
    parental preference doctrine requires that the child be placed
    with the other parent instead of in foster care. Joshua elabo-
    rates that procedural due process requires that the noncusto-
    dial parent be given notice of specific allegations of unfitness
    before the State can deprive such parent of temporary custody
    pursuant to that parent’s constitutionally protected parental
    19
    See In re Interest of Taeven Z., 
    19 Neb. App. 831
    , 
    812 N.W.2d 313
     (2012).
    20
    See State on behalf of Pathammavong v. Pathammavong, 
    268 Neb. 1
    , 
    679 N.W.2d 749
     (2004).
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    preference. And a parent who is not described in a petition
    for adjudication is not given the necessary notice unless other
    filings are made.
    Joshua points out that the State never alleged in any filings
    in juvenile court that he was unfit or had forfeited his superior
    right to custody, and he asserts that the court violated his due
    process rights both by litigating unfitness and by placing upon
    him at the hearings on his motion for placement the burden
    of demonstrating that he was fit to parent B.C. He argues that
    once he established his constitutionally protected status as a
    parent, the motion for placement should have been granted
    without further inquiry. He was not required to cooperate with
    DHHS in forming a plan that would provide assurances of
    B.C.’s safety, because the parental preference doctrine dictates
    that absent a showing of unfitness, he has a superior right to
    custody without undue State interference. Alternatively, Joshua
    argues that the evidence did not establish by a preponderance
    of the evidence that he was unfit.
    The State, for its part, points out that it has been granted
    temporary legal custody over B.C. and is attempting to duti-
    fully exercise its parens patriae responsibility to ensure B.C.’s
    welfare wherever he is placed. And the juvenile code contem-
    plates jurisdiction over not only the child described therein, but
    also over such child’s parents. 21 The State notes that the juve-
    nile court concluded that B.C.’s welfare could not be ensured
    without more cooperation from Joshua in creating a safety plan.
    Thus, the juvenile court determined that the State had proved
    that at least at the moment, Joshua was “unfit.” It denies that it
    placed the burden on Joshua to prove himself fit.
    The question presented in this appeal is where the net
    weight lies in the balance between the State’s parens patriae
    interest in protecting B.C.’s welfare and Joshua’s liberty and
    privacy interests in the care, custody, and management of his
    21
    See, § 43-247(5); In re Interest of Devin W. et al., 
    supra note 15
    ; In re
    Interest of Sabrina K., 
    262 Neb. 871
    , 
    635 N.W.2d 727
     (2001).
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    child. 22 This case specifically raises questions concerning what
    level of State intrusion into the rights of a noncustodial parent,
    against whom no allegations have been made, is justified by
    a pending adjudication of the child under § 43-247(3)(a) due
    to allegations against the custodial parent and after a deter-
    mination that the child would be at significant risk of harm if
    maintained in the custodial parent’s home. It also raises issues
    of how the noncustodial parent’s disability is treated in relation
    to determining temporary custodial rights.
    [8-10] The relationship between parent and child is consti-
    tutionally protected and cannot be affected without procedural
    due process. 23 Due process of law is the “basic and essential
    term in the social compact which defines the rights of the indi-
    vidual and delimits the powers which the state may exercise.” 24
    But due process, “‘unlike some legal rules, is not a technical
    conception with a fixed content unrelated to time, place and
    circumstances.’” 25 The concept of due process embodies the
    notion of fundamental fairness and defies precise definition. 26
    Due process is flexible and calls for such procedural protec-
    tions as the particular situation demands. 27
    The constitutional protections in the realm of parental rights
    and parens patriae responsibilities must be “elaborated with
    care.” 28 In determining where the net weight lies, we must
    evaluate Joshua’s interests that were at stake in the tempo-
    rary placement of B.C. in foster care rather than in Joshua’s
    22
    See Lassiter v. Department of Social Services, 
    452 U.S. 18
    , 
    101 S. Ct. 2153
    , 
    68 L. Ed. 2d 640
     (1981).
    23
    State ex rel. Grape v. Zach, 
    247 Neb. 29
    , 
    524 N.W.2d 788
     (1994).
    24
    In re Gault, 
    387 U.S. 1
    , 20, 
    87 S. Ct. 1428
    , 
    18 L. Ed. 527
     (1967).
    25
    Mathews v. Eldridge, 
    424 U.S. 319
    , 334, 
    96 S. Ct. 893
    , 
    47 L. Ed. 2d 18
    (1976).
    26
    In re Interest of Sloane O., 
    supra note 17
    .
    27
    
    Id.
    28
    See, e.g., Troxel v. Granville, 
    530 U.S. 57
    , 101, 
    120 S. Ct. 2054
    , 
    147 L. Ed. 2d 49
     (2000) (Kennedy, J., dissenting).
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    home. We must determine the risk of erroneous deprivation of
    such interests through the procedures used and the probable
    value, if any, of additional or substitute procedural safeguards.
    And we must evaluate the State’s interest in the placement
    decision, including the function involved and the fiscal and
    administrative burdens that additional procedural requirements
    would entail. 29
    [11] “[P]arents have a fundamental liberty interest in caring
    for and guiding their children, and a corresponding privacy
    interest—absent exceptional circumstances—in doing so with-
    out the undue interference of strangers to them and to their
    child”; these interests, however, “‘“do not spring full-blown
    from the biological connection between parent and child.”’” 30
    The “mere existence of a biological link does not merit [sub-
    stantial] constitutional protection.” 31 Rather, such liberty inter-
    est stems from the more enduring relationship developed upon
    a biological parent’s “commitment to the responsibilities of
    parenthood.” 32 If the parent fails to grasp the opportunity to
    develop a relationship with the parent’s offspring and does not
    accept “some measure of responsibility for the child’s future,”
    “the Federal Constitution will not automatically compel a
    State to listen to his opinion of where the child’s best inter-
    ests lie.” 33
    [12] The U.S. Supreme Court has held that an unwed bio-
    logical father who has grasped the opportunity to establish
    29
    See, Santosky v. Kramer, 
    455 U.S. 745
    , 
    102 S. Ct. 1388
    , 
    71 L. Ed. 2d 599
    (1982); Lassiter v. Department of Social Services, supra note 22; Mathews
    v. Eldridge, 
    supra note 25
    .
    30
    Troxel v. Granville, 
    supra note 28
    , 
    530 U.S. at 87
     (Stevens, J., dissenting).
    See, also, e.g., Prince v. Massachusetts, 
    321 U.S. 158
    , 
    64 S. Ct. 438
    , 
    88 L. Ed. 645
     (1944); In re Interest of Enyce J. & Eternity M., supra note 1.
    See, also, State on behalf of Tina K. v. Adam B., ante p. 1, 
    948 N.W.2d 182
    (2020).
    31
    Lehr v. Robertson, 
    463 U.S. 248
    , 261, 
    103 S. Ct. 2985
    , 
    77 L. Ed. 2d 614
    (1983).
    32
    
    Id.
    33
    
    Id.,
     
    463 U.S. at 262
    .
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    a familial relationship with his biological child has an inter-
    est in personal contact with his child, which interest is given
    substantial protection under the Due Process Clause of the
    14th Amendment. 34 “The private interest . . . of a man in the
    children he has sired and raised, undeniably warrants deference
    and, absent a powerful countervailing interest, protection.” 35 It
    has been established both that Joshua is B.C.’s biological father
    and that he has cared for and supported B.C. throughout most
    of B.C.’s life. Joshua is also B.C.’s legal father by virtue of the
    acknowledgment of paternity. Under these facts, Joshua has a
    fundamental liberty interest in the care, custody, and manage-
    ment of B.C. that is entitled to substantial protection under the
    Due Process Clause of the 14th Amendment.
    [13] The State has an interest in the placement of B.C. that
    is derived from its role as parens patriae. 36 That interest is also
    important. 37 Parens patriae means, in essence, that the State has
    a right to protect the welfare of its resident children. 38 When
    parental control fails, the State must play its part as parens
    patriae. 39 The State has an interest in determining the status
    and custody that will best meet the child’s needs and wants,
    which is invoked both in proceedings under the juvenile code
    and when the State must adjudicate custody rights as between
    two parents. 40
    34
    See, e.g., Lehr v. Robertson, 
    supra note 31
    ; In re Adoption of Corbin J.,
    
    278 Neb. 1057
    , 
    775 N.W.2d 404
     (2009).
    35
    Stanley v. Illinois, 
    405 U.S. 645
    , 651, 
    92 S. Ct. 1208
    , 
    31 L. Ed. 2d 551
    (1972).
    36
    In re Interest of Enyce J. & Eternity M., supra note 1.
    37
    See In re Interest of Anthony G., 
    255 Neb. 442
    , 
    586 N.W.2d 427
     (1998).
    38
    In re Interest of Karlie D., supra note 3.
    39
    See In re Interest of S.R., D.R., and B.R., 
    239 Neb. 871
    , 
    479 N.W.2d 126
    (1992).
    40
    See, e.g., Copple v. Copple, 
    186 Neb. 696
    , 
    185 N.W.2d 846
     (1971);
    State ex rel. Cochrane v. Blanco, 
    177 Neb. 149
    , 
    128 N.W.2d 615
     (1964);
    Meyerkorth v. State, 
    173 Neb. 889
    , 
    115 N.W.2d 585
     (1962); In re
    Application of Reed, 
    152 Neb. 819
    , 
    43 N.W.2d 161
     (1950); In re Interest
    of Stephanie H. et al., 
    10 Neb. App. 908
    , 
    639 N.W.2d 668
     (2002).
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    When called upon, the State, through the juvenile court,
    merely performs its duty of seeing that the child was properly
    cared for. 41 The juvenile court is a product of the solicitude of
    the law for the welfare of infants. 42 Its powers and duties are
    described in detail in our statutes, and because of their humani-
    tarian and beneficent purpose, these statutes should be liber-
    ally construed to the end that their manifest purpose may be
    effectuated to the fullest extent compatible with their terms. 43
    
    Neb. Rev. Stat. § 43-246
     (Supp. 2019) provides in relevant part
    that the juvenile code shall be construed to ensure the rights of
    all children to care and protection and a safe and stable living
    environment, “with due regard to parental rights.”
    [14-16] The “‘rights of parenthood,’” even of a fit ­parent,
    are not “‘beyond limitation’” 44 by the State’s powers and duties
    as parens patriae. Thus, for example, the State may impose
    through laws of neutral and general applicability certain educa-
    tional requirements, restrictions on child labor, and compulsory
    vaccination, even when against the parents’ ­wishes. 45 But, as
    the U.S. Supreme Court has explained, the “State registers
    no gain towards its declared goals when it separates children
    from the custody of fit parents.” 46 Where a child is cared for
    by a fit parent, the State’s interest in caring for the child is
    “de minimis.” 47 “[T]he State cannot presume that a child and
    his parents are adversaries.” 48 Only the paramount interest
    41
    See DeBacker v. Brainard, 
    183 Neb. 461
    , 
    161 N.W.2d 508
     (1968).
    42
    Stewart v. McCauley, 
    178 Neb. 412
    , 
    133 N.W.2d 921
     (1965).
    43
    See 
    id.
    44
    Douglas Cty. v. Anaya, 
    269 Neb. 552
    , 560, 
    694 N.W.2d 601
    , 607 (2005),
    quoting Prince v. Massachusetts, 
    supra note 30
    . See, also, Copple v.
    Copple, 
    supra note 40
    ; State ex rel. Cochrane v. Blanco, 
    supra note 40
    ;
    Meyerkorth v. State, supra note 40.
    45
    See, e.g., Prince v. Massachusetts, 
    supra note 30
    ; Douglas Cty. v. Anaya,
    
    supra note 44
    .
    46
    Stanley v. Illinois, 
    supra note 35
    , 
    405 U.S. at 652
    .
    47
    
    Id.,
     
    405 U.S. at 657
     (emphasis omitted).
    48
    Santosky v. Kramer, 
    supra note 29
    , 
    455 U.S. at 760
    .
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    which the public has in the protection of the rights of the child
    can subjugate the rights of parents to maintain custody of
    their children. 49
    Due to the allegations against the mother, the State has been
    called upon to play its role as parens patriae for B.C. And dur-
    ing proceedings under § 43-247(3)(a), the juvenile court has
    broad jurisdiction regarding placement. 50 B.C. was removed
    from his mother’s home upon probable cause that he was
    seriously endangered in his surroundings and that immediate
    removal was necessary for his protection. 51 B.C. remained in
    DHHS’ continuing temporary physical custody pending adju-
    dication in accordance with the juvenile code’s requirement
    that the court find that being placed back in the mother’s
    home would be contrary to B.C.’s health, safety, or welfare. 52
    But aside from its general mandate that due regard be given
    to parental rights, 53 the juvenile code’s provisions governing
    physical custody pending disposition do not specifically con-
    template situations where only one parent resides in the home
    from which the child was removed.
    [17-19] We have 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 dispo-
    sition is limited by Nebraska’s “parental preference doctrine,”
    which governs the rights of the other parent against whom no
    allegations have been made. 54 The parental preference doctrine
    holds that in a child custody controversy between a biologi-
    cal parent and one who is neither a biological nor an adoptive
    parent, the biological parent has a superior right to the custody
    49
    See In re Interest of Sloane O., 
    supra note 17
    .
    50
    See, e.g., In re Interest of Karlie D., supra note 3.
    51
    See § 43-248.
    52
    See 
    Neb. Rev. Stat. § 43-254
     (Cum. Supp. 2018).
    53
    § 43-246(2).
    54
    See In re Interest of Kamille C. & Kamiya C., 
    302 Neb. 226
    , 233, 
    922 N.W.2d 739
    , 746 (2019).
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    of the child. 55 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 presump-
    tively regarded as the proper guardian. 56 Only exceptional
    circumstances involving proof of serious physical or psycho-
    logical 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 prefer-
    ence doctrine. 57
    Thus, in In re Interest of Sloane O., 58 we held that due proc­
    ess protected the custody rights of a mother whose child had
    been adjudicated due to the faults or habits of the father, which
    rights were “subject only to the State’s interest in protecting
    [the child] from harm.” 59 In considering the mother’s motion
    for temporary custody, we held that the juvenile court should
    have presumed under the parental preference doctrine that the
    mother was the best person to parent the child unless and until
    the State affirmatively demonstrated otherwise. 60
    The mother in In re Interest of Sloane O. had been physi-
    cally separated from the father, and a divorce action was
    pending. We held that evidence that the mother had previously
    witnessed incidents of the father’s chaining the child to a
    couch was insufficient to meet the State’s burden to prove the
    mother unfit and overcome parental preference. 61 We reversed
    55
    
    Id.
    56
    See, e.g., In re Interest of Sloane O., 
    supra note 17
    ; In re Interest of
    Jaydon W. & Ethan W., 
    25 Neb. App. 562
    , 
    909 N.W.2d 385
     (2018); In re
    Interest of Miah T. & DeKandyce H., 
    23 Neb. App. 592
    , 
    875 N.W.2d 1
    (2016); In re Interest of Stephanie H. et al., supra note 40.
    57
    See State on behalf of Tina K. v. Adam B., supra note 30.
    58
    In re Interest of Sloane O., 
    supra note 17
    .
    59
    Id. at 903, 870 N.W.2d at 118.
    60
    See id.
    61
    See In re Interest of Sloane O., 
    supra note 17
    .
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    the juvenile court’s denial of the mother’s motion for custody
    and remanded the cause for further proceedings to consider
    the most up-to-date information regarding the child. 62
    The Court of Appeals, in In re Interest of Stephanie H. et
    al., 63 held similarly when it reversed the juvenile court’s order
    denying the noncustodial mother’s motion for placement after
    her children had been removed from the custodial father’s
    home under allegations of sexual abuse. The Court of Appeals
    held that fundamental fairness demanded that the mother “be
    given prompt notice of any allegations against her which the
    State or [DHHS] contends make placement of her children with
    her contrary to the children’s best interests.” 64 The burden of
    proof was thereafter upon the State to overcome the parental
    preference doctrine.
    Evidence in In re Interest of Stephanie H. et al. that the
    mother was living with a man for the preceding 6 months,
    knowing he was on “‘work release’” 65 but not knowing
    whether he had a criminal record, did not “remotely resembl[e]
    an affirmative showing” 66 that the mother was unfit or that
    she had forfeited her parental rights. The State had neither
    alleged nor proved that the mother should not have custody
    of her children. 67 The Court of Appeals reversed the order
    of the juvenile court and remanded the cause with directions
    to place the children with the mother pending adjudication.
    The court noted, however, that its mandate did not preclude
    the State from coming forward in the future “with allegations
    and proof that [the mother was] not a fit custodial parent of
    her children.” 68
    62
    See 
    id.
    63
    In re Interest of Stephanie H. et al., supra note 40.
    64
    Id. at 921-22, 
    639 N.W.2d at 680
    .
    65
    Id. at 913, 
    639 N.W.2d at 674
    .
    66
    Id. at 924, 
    639 N.W.2d at 682
    .
    67
    In re Interest of Stephanie H. et al., supra note 40.
    68
    Id. at 926, 
    639 N.W.2d at 683
    .
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    Likewise, in In re Interest of Jaydon W. & Ethan W., 69 the
    Court of Appeals reversed the juvenile court’s denial of the
    noncustodial father’s motion for custody in ongoing proceed-
    ings for a child adjudicated due to the fault or habits of the
    custodial mother. DHHS had objected to the father’s custody
    based on regression in the children’s behavior after visita-
    tion and a protection order that had expired approximately 11⁄2
    years earlier. The juvenile court indicated custody would be
    revisited after DHHS completed further assessments ordered
    by the court. But, relying on the parental preference doctrine,
    the Court of Appeals described that the initial question must be
    whether the presumption that the children’s best interests are
    served by reuniting them with their father has been rebutted
    by clear and convincing evidence that the father is unfit or has
    forfeited his right to custody. The Court of Appeals found that
    it had not.
    While the Court of Appeals expressed in In re Interest of
    Jaydon W. & Ethan W. that it understood the juvenile court’s
    “reluctance to uproot the children from their long-term foster
    home, especially given their recent behavioral concerns,” 70
    it held that the father’s right to custody could be “disrupted
    only upon a finding that he is unfit or has forfeited his right
    to custody.” 71 Still, the Court of Appeals explained that the
    juvenile court was not required to “order the children be turned
    over to [the father] immediately.” 72 It was constitutionally
    permissible and in the children’s best interests to implement a
    transition plan. The Court of Appeals remanded the cause with
    directions for the court to do so.
    [20] Our case law is clear that when the allegations of a
    petition for adjudication invoking the jurisdiction of the juve-
    nile court are against one parent only, the State cannot deny
    69
    In re Interest of Jaydon W. & Ethan W., 
    supra note 56
    .
    70
    Id. at 576, 909 N.W.2d at 396.
    71
    Id.
    72
    Id. at 576-77, 909 N.W.2d at 397.
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    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 circum-
    stances involving serious physical or psychological harm to the
    child or a substantial likelihood of such harm.
    [21] We note, however, that the State is not required to
    grant a nonoffending biological parent’s request for custody
    before confirming that the parent has actually acquired con-
    stitutionally protected parental status. We observe that in In
    re Interest of Sloane O. and In re Interest of Stephanie H.
    et al., the custody and visitation rights of the nonoffending
    parent had been adjudicated by the district court. 73 Because
    parental preference derives not simply from biology but from
    the enduring relationship developed upon a biological parent’s
    commitment to the responsibilities of parenthood, children
    removed from their homes due to the fault or habits of one
    parent need not immediately and without some minimal inves-
    tigation be placed with the other biological parent whose status
    as having “an actual relationship of parental responsibility” 74
    is unknown. Only once that relationship is established does
    such a parent who wishes for temporary physical custody
    during the pendency of juvenile proceedings have a parental
    preference that cannot be denied without notice and an affirm­
    ative showing by a preponderance of the evidence 75 that the
    parent is unfit or has forfeited the parental relationship or that
    an exceptional circumstance of serious physical or psycho-
    logical harm to the child or a substantial likelihood of such
    harm exists.
    [22-24] Furthermore, as the Court of Appeals recognized
    in In re Interest of Jaydon W. & Ethan W., due process is
    73
    In re Interest of Sloane O., 
    supra note 17
    ; In re Interest of Stephanie H. et
    al., supra note 40.
    74
    Lehr v. Robertson, 
    supra note 31
    , 
    463 U.S. at 260
    .
    75
    In re Interest of R.G., supra note 6.
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    “flexible,” 76 not “‘a fixed content unrelated to time, place
    and circumstances.’” 77 Accordingly, the nonoffending parent’s
    exercise of the parental preference of custody is not entirely
    unfettered during the juvenile court’s continuing jurisdiction
    under the juvenile code. The juvenile court, in the exercise of
    its parens patriae responsibilities, may develop a transition plan
    constituting a reasonable intrusion of limited duration into the
    nonoffending parent’s rights to autonomy in the care and cus-
    tody of the child. Likewise, it does not violate due process for
    the juvenile court in its determination of the child’s best inter-
    ests and in its role as adjudicator of the custody rights between
    two parents to require the nonoffending parent’s cooperation
    with goals of reunification back into the home from where the
    child was taken. 78 After all, the parental preference doctrine
    serves no role in determining the custody rights between two
    biological or legal parents.
    [25-27] It was established at the hearing on Joshua’s motion
    for placement that he is a parent entitled to substantial protec-
    tion under the Due Process Clause of the 14th Amendment.
    Yet, there was never a formal allegation placing Joshua on
    notice that he would have to defend against an attempt by the
    State to prove he had lost the presumption of parental prefer-
    ence. Procedural due process generally requires that notice be
    given of such a nature as to reasonably convey the required
    information. 79 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 seek-
    ing to prove that the parent is unfit or has forfeited parental
    76
    In re Interest of Jaydon W. & Ethan W., 
    supra note 56
    , 25 Neb. App. at
    572, 909 N.W.2d at 394.
    77
    Mathews v. Eldridge, 
    supra note 25
    , 
    424 U.S. at 334
    .
    78
    See Vivek S. Sankaran, Parens Patriae Run Amuck: The Child Welfare
    System’s Disregard for the Constitutional Rights of Nonoffending Parents,
    82 Temple L. Rev. 55 (2009).
    79
    See Mullane v. Central Hanover Tr. Co., 
    339 U.S. 306
    , 
    70 S. Ct. 652
    , 
    94 L. Ed. 865
     (1950).
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    rights or that exceptional circumstances exist involving serious
    ­physical or psychological harm to the child or a substantial like-
    lihood of such harm. 80 While as to the parent from whose home
    the child was removed, such notice is ordinarily contained in
    the petition for adjudication, 81 allegations as to the fault or hab-
    its 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.
    We agree with Joshua that because he was not given notice
    that his fitness, forfeiture, or exceptional circumstances were
    to be adjudicated at the hearing on his motion for placement,
    the juvenile court could not properly deprive him of his right
    to custody under the parental preference doctrine. The court
    found Joshua unfit, but without specific allegations of unfit-
    ness. The court violated Joshua’s rights to procedural due
    process. Without a proper adjudication that the State had rebut-
    ted Joshua’s parental preference by a preponderance of the
    evidence, the parental preference doctrine required temporary
    placement of B.C. with Joshua, who has developed an enduring
    relationship with B.C. and has committed to the responsibilities
    of parenthood. We therefore reverse the district court’s order
    denying Joshua’s motion for placement on procedural due
    process grounds and remand the cause with directions to grant
    Joshua temporary physical placement after establishing, with
    the most up-to-date information, an appropriate plan for B.C.’s
    transition into Joshua’s temporary physical custody.
    Granting Joshua’s motion for temporary physical placement
    does not mean that the juvenile court lacks any authority over
    B.C. and Joshua. 82 At the time of B.C.’s removal, the mother
    was the de facto custodial parent, and the State’s current goal
    is reunification with her and placement back into the home
    B.C. was removed from. Joshua has not sought custody in
    80
    See 
    id.
    81
    See In re Interest of Xavier H., 
    274 Neb. 331
    , 
    740 N.W.2d 13
     (2007).
    82
    See, § 43-247(3) and (5); In re Interest of Devin W. et al., supra note 15.
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    district court or through a bridge order 83 in juvenile court.
    The juvenile court has the power to require cooperation with
    orders of visitation with the mother and its reunification plan.
    Temporary physical custody with a noncustodial parent ought
    not create a “substantial and unnecessary hindrance to efforts
    of reunification” with the custodial parent. 84 Furthermore, a
    plan for B.C.’s welfare during the transition from his foster
    placement to Joshua’s care is an appropriate exercise of the
    State’s parens patriae jurisdiction so long as the plan is a tem-
    porary and minor intrusion into Joshua’s parental rights.
    We note that on remand, the State is free to attempt to prop-
    erly plead factual bases for an allegation that Joshua is unfit and
    again try to prove that placement with Joshua is not required
    under the parental preference doctrine. Parents have no double
    jeopardy defense against repeated efforts by the State to modify
    temporary placement during a juvenile proceeding. 85 Therefore,
    in order to provide guidance for an issue that is likely to resur-
    face on remand, we discuss the lower court’s approach to its
    fitness determination for Joshua, who is currently experiencing
    a physical disability. It appears that the State and the juvenile
    court were operating under the wrong standards.
    Instead of evaluating whether the State had affirmatively
    proved Joshua unfit, the juvenile court seemed to shift the
    burden onto Joshua to prove himself fit. The court con-
    cluded that Joshua’s lack of “cooperation” in allaying “con-
    cerns” rendered him unfit. But the “concerns” described did
    not themselves establish unfitness. Rather, they were ques-
    tions about how Joshua, wheelchair bound, would be able
    to address hypothetical scenarios that may or may not arise.
    The court and DHHS were worried about Joshua’s testimony
    that he required assistance from home health care aides in
    83
    See 
    Neb. Rev. Stat. § 43-246.01
     (Reissue 2016).
    84
    In re Interest of Ethan M., 
    15 Neb. App. 148
    , 158, 
    723 N.W.2d 363
    , 371
    (2006).
    85
    See Santosky v. Kramer, 
    supra note 29
    .
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    the morning getting into his wheelchair, that he could not sit
    up on his own yet, and that he did not have overnight care.
    They had concerns about the fact that Joshua did not prepare
    his own meals.
    Joshua testified that he did not believe the lack of an over-
    night caretaker would endanger B.C., and he listed ways in
    which he could provide adequate food for B.C. When specific
    overnight scenarios were presented to Joshua during his tes-
    timony, he had adequate answers as to how he would handle
    them. For example, when asked about what he would do if
    there were a fire, Joshua responded that he would call the fire
    department. Joshua owns a four-bedroom home in the cen-
    ter of town which DHHS evaluated as being in appropriate
    condition. Joshua is able to support himself and B.C. on his
    disability income. Joshua has made arrangements for B.C.’s
    transportation to and from school, as well as to and from any
    appointments B.C. might have. While Joshua is not able to pre-
    pare meals himself, he testified as to several different options
    that would provide B.C. with sufficient food. B.C. lived with
    Joshua up until Joshua developed Guillain-Barre syndrome,
    the mother having described Joshua and B.C. as well bonded,
    and Joshua described a daily routine for B.C.’s care. Joshua
    described disability services, family, and members of the com-
    munity he could reach out to as needed when difficult situa-
    tions arise.
    Still, the juvenile court, in its determination of unfitness,
    relied on the lack of a written safety plan developed in cooper­
    ation with DHHS that would address in more detail how B.C.
    would be cared for when Joshua lacked home health care or
    when B.C. would be in the home for longer periods of time.
    The court had concerns about the details of how Joshua would
    care for B.C. on weekends, snow days, and holidays, and how
    he might address nosebleeds and fevers developed in the mid-
    dle of the night. The court appeared to presume that because of
    Joshua’s disability, Joshua was unfit unless he could provide
    a detailed response to all of the posed hypothetical scenarios,
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    to be memorialized in a safety plan. Such a presumption
    is unlawful.
    [28] While not directly controlling, we note that the
    Legislature has declared in 
    Neb. Rev. Stat. § 42-364.18
     (Cum.
    Supp. 2018) that individuals with disabilities “continue to face
    unfair, preconceived, and unnecessary societal biases as well as
    antiquated attitudes regarding their ability to successfully par-
    ent their children.” And in 
    Neb. Rev. Stat. § 42-364
    (2) (Cum.
    Supp. 2018), the Legislature declared that “no presumption
    shall exist that either parent is more fit or suitable than the
    other” based on either “the sex or [the] disability of the parent.”
    Likewise, we hold that there is no presumption that a disabled
    parent is unfit, that a disabled parent has forfeited parental
    rights, or that exceptional circumstances exist involving seri-
    ous physical or psychological harm to the child or a substantial
    likelihood of such harm because a parent is disabled.
    [29] It is conceivable that a lack of adequate accommoda-
    tions could render a disabled parent unable to care for a child,
    thereby affecting the State’s placement decision. However, the
    simple fact that a parent is disabled does not overcome the
    presumption that the parent is a better caretaker of the parent’s
    own child than the State is. The lack of a detailed safety plan
    to account for possible hypothetical scenarios that Joshua may
    have to address differently from a parent who is not wheelchair
    bound did not affirmatively prove him unfit.
    The only evidence of unfitness presented at the hearing
    that was not related to Joshua’s disability was a couple of
    “hectic” visitations involving both B.C. and his half siblings,
    “unfounded” past intakes, the mother’s description of the inci-
    dent in 2015, and the mother’s general concern over exces-
    sive drinking. Parental unfitness means a personal deficiency
    or incapacity which has prevented, or will probably prevent,
    performance of a reasonable parental obligation in child rear-
    ing and which caused, or probably will result in, detriment to
    a child’s wellbeing. 86 The juvenile court did not appear to rely
    86
    Tilson v. Tilson, ante p. 275, 
    948 N.W.2d 768
     (2020).
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    on such evidence in finding Joshua unfit under that definition,
    and, having reversed on procedural due process grounds, we
    need not determine in this appeal whether it would have been
    sufficient to sustain the State’s burden.
    We appreciate the juvenile court’s concern for the welfare of
    the child it has been called upon to protect due to the fault or
    habits of the mother. And the State is not bound to wait until
    a tragedy has befallen a child before intervention occurs upon
    proof that the fault or habits of a parent present a risk of harm
    to the child. 87 But no notice was provided to Joshua that his
    fitness was at issue; therefore, the court erred in finding him
    unfit and in denying his parental preference to physical cus-
    tody, which he sought to enforce through his motion for tempo-
    rary placement. In the event the State attempts again to prove
    Joshua unfit after proper notice has been given, we clarify that
    a physical disability does not shift the burden to the disabled
    parent to prove fitness despite such disability.
    4. Equal Protection
    Because we reverse the December 23, 2019, order on pro-
    cedural due process grounds, we need not address Joshua’s
    arguments that the denial of his motion for placement violated
    equal protection.
    5. Jurisdiction Over Adjudication
    Pending Appeal
    We next address Joshua’s argument in case No. S-20-244
    that his appeal from the December 23, 2019, order denying his
    motion for placement deprived the juvenile court of jurisdic-
    tion to accept B.C.’s mother’s plea and adjudicate B.C. due
    to the fault or habits of his mother. Joshua points out that he
    is a party to the case in which the adjudication order was ren-
    dered and that his parental rights are affected by the adjudica-
    tion order that establishes with more permanency the court’s
    87
    See In re Interest of M.B. and A.B., 
    239 Neb. 1028
    , 
    480 N.W.2d 160
    (1992).
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    jurisdiction and legal custody over B.C., as well as its jurisdic-
    tion over Joshua pursuant to § 43-247(5).
    [30] Nebraska case law generally holds that once an appeal
    has been perfected, the lower court is divested of its subject
    matter jurisdiction over that case. 88 However, we have held that
    a juvenile court is not wholly divested of jurisdiction during
    the pendency of an appeal from a final order. 89
    
    Neb. Rev. Stat. § 43-295
     (Reissue 2016), which is directly
    applicable to the separate juvenile courts, states:
    Except when the juvenile has been legally adopted,
    the jurisdiction of the court shall continue over any
    juvenile brought before the court or committed under the
    Nebraska Juvenile Code and the court shall have power
    to order a change in the custody or care of any such juve-
    nile if at any time it is made to appear to the court that
    it would be for the best interests of the juvenile to make
    such change.
    Additionally, state law clearly provides, through 
    Neb. Rev. Stat. § 43-2
    ,106 (Reissue 2016), that in counties where there is
    no separate juvenile court, the county court sitting as a juvenile
    court shall continue to exercise supervision of the juvenile until
    a hearing is had in the appellate court and the appellate court
    enters an order making other disposition. Section 43-2,106
    states in full:
    When a juvenile court proceeding has been instituted
    before a county court sitting as a juvenile court, the origi-
    nal jurisdiction of the county court shall continue until
    the final disposition thereof and no appeal shall stay the
    enforcement of any order entered in the county court.
    After appeal has been filed, the appellate court, upon
    application and hearing, may stay any order, judgment,
    88
    See, e.g., State v. Abram, 
    284 Neb. 55
    , 
    815 N.W.2d 897
     (2012); Billups v.
    Scott, 
    253 Neb. 293
    , 
    571 N.W.2d 607
     (1997); Anderzhon/Architects Inc. v.
    57 Oxbow II Partnership, 
    250 Neb. 768
    , 
    553 N.W.2d 157
     (1996); Flora v.
    Escudero, 
    247 Neb. 260
    , 
    526 N.W.2d 643
     (1995).
    89
    See In re Interest of Jedidiah P., 
    267 Neb. 258
    , 
    673 N.W.2d 553
     (2004).
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    or decree on appeal if suitable arrangement is made for
    the care and custody of the juvenile. The county court
    shall continue to exercise supervision over the juvenile
    until a hearing is had in the appellate court and the appel-
    late court enters an order making other disposition. If
    the appellate court adjudges the juvenile to be a juvenile
    meeting the criteria established in subdivision (1), (2),
    (3), or (4) of section 43-247, the appellate court shall
    affirm the disposition made by the county court unless
    it is shown by clear and convincing evidence that the
    disposition of the county court is not in the best interest
    of such juvenile. Upon determination of the appeal, the
    appellate court shall remand the case to the county court
    for further proceedings consistent with the determination
    of the appellate court.
    Somewhat similarly, in dissolution proceedings, 
    Neb. Rev. Stat. § 42-351
    (2) (Reissue 2016) provides that when final
    orders are pending on appeal
    the court that issued such orders shall retain jurisdiction
    to provide for such orders regarding support, custody, par-
    enting time, visitation, or other access, orders shown to be
    necessary to allow the use of property or to prevent the
    irreparable harm to or loss of property during the pend­
    ency of such appeal, or other appropriate orders in aid of
    the appeal process. Such orders shall not be construed to
    prejudice any party on appeal.
    In In re Interest of Jedidiah P., 90 we noted that while there
    is no statute governing the separate juvenile courts which,
    similarly to § 43-2,106, clearly articulates such courts’ con-
    tinuing jurisdiction during the pendency of an appeal, we
    could “discern no reason for a juvenile court not to retain such
    authority, regardless of whether it is a county court sitting as
    a juvenile court or a separate juvenile court.” Therefore, we
    90
    In re Interest of Jedidiah P., supra note 89, 
    267 Neb. at 263
    , 673 N.W.2d
    at 557.
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    held that a separate juvenile court continues to exercise super-
    vision of the juvenile during an appeal. 91
    [31] The extent of the continuing jurisdiction of the sepa-
    rate juvenile courts and the county courts sitting as juvenile
    courts during the pendency of an appeal is not without limits
    and must be determined by the facts of each case. 92 The ques-
    tion is the level of supervision the separate juvenile court may
    properly exercise during the pendency of the appeal, which is
    governed by §§ 43-295 and 43-2,106. 93
    [32] We have held that the juvenile courts’ continuing juris-
    diction does not include the power to terminate a juvenile’s
    relationship with the child’s parents. 94 In contrast, our courts
    have found juvenile courts to have continuing jurisdiction dur-
    ing the pendency of an appeal to issue an order to show cause
    seeking enforcement of prior orders requiring a speech and
    language assessment 95 and to order the temporary suspension
    of visitation. 96 In In re Interest of Andrew H. et al., 97 the Court
    of Appeals held that an order of permanent disposition during
    the pendency of an appeal of an adjudication order went beyond
    the court’s continuing jurisdiction to exercise supervision over
    91
    See id.
    92
    See In re Interest of Becka P. et al., 
    296 Neb. 365
    , 
    894 N.W.2d 247
     (2017);
    In re Interest of Jedidiah P., supra note 89. See, also, e.g., In re Interest of
    Phoenix L., 
    270 Neb. 870
    , 
    708 N.W.2d 786
     (2006), disapproved on other
    grounds, In re Interest of Destiny A. et al., 
    274 Neb. 713
    , 
    742 N.W.2d 758
    (2007); In re Interest of Stacey D. & Shannon D., 
    12 Neb. App. 707
    , 
    684 N.W.2d 594
     (2004).
    93
    In re Interest of Jedidiah P., supra note 89.
    94
    See id.
    95
    In re Interest of Becka P. et al., supra note 92.
    96
    In re Interest of Angeleah M. & Ava M., 
    23 Neb. App. 324
    , 
    871 N.W.2d 49
    (2015), disapproved on other grounds, In re Estate of Abbott-Ochsner, 
    299 Neb. 596
    , 
    910 N.W.2d 504
     (2018).
    97
    In re Interest of Andrew H. et al., 
    5 Neb. App. 716
    , 
    564 N.W.2d 611
    (1997).
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    the juvenile; but in In re Interest of Jedidiah P., 98 we held
    that the juvenile court had continuing jurisdiction during the
    pendency of an appeal of the adjudication order to issue an
    order of disposition changing the juvenile’s custody from the
    juvenile detention center to a residential treatment center and
    granting temporary legal custody of the juvenile to DHHS.
    The difference was that in In re Interest of Jedidiah P., the
    order of disposition was a temporary placement order, while in
    In re Interest of Andrew H. et al., the court had issued a per-
    manent dispositional order adopting a case plan and ordering
    custody outside the home until completion.
    Under the specific facts presented here, we find that the
    juvenile court had continuing jurisdiction to accept the ­mother’s
    plea and adjudicate B.C. while Joshua’s appeal from the order
    denying his motion for placement was pending. Joshua’s reli-
    ance on In re Interest of Joshua M. et al. 99 to argue otherwise
    is misplaced. We held in In re Interest of Joshua M. et al. that
    the juvenile court lacked jurisdiction to terminate parental
    rights to three children during the pendency of appeals from
    a final order of placement outside the home preadjudication
    as to one child and from final orders modifying dispositional
    orders to place outside the home the two other children. The
    juvenile court did not proceed in this case to a termination of
    parental rights.
    We note that successful appeals challenging orders of adju-
    dication would eliminate a juvenile court’s jurisdiction over
    the juvenile and its power to issue permanent dispositional
    orders, while successful appeals from temporary placement
    orders would not. 
    Neb. Rev. Stat. § 43-278
     (Reissue 2016)
    provides that absent a showing of good cause, an adjudication
    hearing shall be held no more than 90 days after a petition is
    filed. As the juvenile court noted, B.C.’s mother had an inter-
    est in promptly adjudicating her children so that she could
    98
    In re Interest of Jedidiah P., supra note 89.
    99
    In re Interest of Joshua M. et al., 
    251 Neb. 614
    , 
    558 N.W.2d 548
     (1997).
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    more quickly proceed to a rehabilitative plan and placement of
    the children back in her care. Joshua’s appeal from the denial
    of his motion for temporary placement can have no effect
    on the juvenile court’s underlying jurisdiction in this case to
    promptly proceed with its statutory duties. The court’s order
    of adjudication was a proper exercise of the juvenile court’s
    ongoing supervisory powers during the pendency of Joshua’s
    appeal in case No. S-20-009. Accordingly, we hold that the
    order of adjudication is not void.
    6. Disqualification
    Lastly, because judicial disqualification is not subject to a
    harmless error analysis 100 and this is a continuing matter, we
    address Joshua’s assignments of error challenging the juvenile
    court judge’s impartiality. Joshua argues that the juvenile court
    judge demonstrated personal bias and prejudice against him
    through leading questions of Knott during the December 23,
    2019, hearing and the statement in the order of adjudication
    that “[t]he current goal in this case is to return the juveniles to
    the custody of [their mother].”
    [33] The Nebraska Revised Code of Judicial Conduct
    requires that “[a] judge shall hear and decide matters assigned
    to the judge, except when disqualification is required . . . .” 101
    The code further states that “[a] judge shall disqualify him-
    self or herself in any proceeding in which the judge’s impar-
    tiality might reasonably be questioned . . . .” 102 Under the
    code, such instances in which the judge’s impartiality might
    reasonably be questioned specifically include where “[t]he
    judge has a personal bias or prejudice concerning a party or a
    party’s lawyer . . . .” 103 The issue of judicial disqualification
    100
    See Tierney v. Four H Land Co., 
    281 Neb. 658
    , 
    798 N.W.2d 586
     (2011).
    101
    Neb. Rev. Code of Judicial Conduct § 5-302.7.
    102
    Neb. Rev. Code of Judicial Conduct § 5-302.11(A).
    103
    § 5-302.11(A)(1).
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    is timely if submitted at the earliest practicable opportunity
    after the disqualifying facts are discovered. 104
    [34,35] Assuming without deciding that the question of the
    juvenile court judge’s disqualification was not waived, we find
    no merit to Joshua’s assertion that the juvenile court judge
    should have been disqualified. There exists a presumption of
    judicial impartiality, and a party alleging that a judge acted
    with bias or prejudice bears a heavy burden of overcoming that
    presumption. 105 A judge’s opinions based on facts presented
    during a hearing, even if those opinions are stated before the
    hearing’s conclusion, are not indicative of bias by the judge
    unless they display a deep-seated favoritism or antagonism that
    would make fair judgment impossible. 106 The juvenile court
    judge’s questioning and comment simply reflected the court’s
    opinions based on the facts presented at the hearings and the
    judge’s understanding of the law. Under the objective standard
    of reasonableness applicable to disqualification, the juvenile
    court judge’s questions and comment would not cause a rea-
    sonable person to question his impartiality. 107
    VI. CONCLUSION
    In case No. S-20-009, we reverse the December 23, 2019,
    order denying Joshua’s motion for placement and remand
    the cause with directions for further proceedings to develop
    a transition plan. In case No. S-20-244, we affirm the order
    of adjudication.
    Judgment in No. S-20-009 reversed, and
    cause remanded with directions.
    Judgment in No. S-20-244 affirmed.
    104
    Tierney v. Four H Land Co., supra note 100.
    105
    In re Interest of Jamyia M., 
    281 Neb. 964
    , 
    800 N.W.2d 259
     (2011).
    106
    See In re Interest of J.K., 
    300 Neb. 510
    , 
    915 N.W.2d 91
     (2018).
    107
    See 
    id.