In re Interest of Miah T. & DeKandyce H. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:12 PM CDT
- 592 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
In re I nterest of Miah T. and DeK andyce H.,
children under18 years of age.
State of Nebraska, appellee, v.
DeK arlos H., appellant.
___ N.W.2d ___
Filed February 2, 2016. Nos. A-15-417, A-15-694.
1. 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.
However, when the evidence is in conflict, an appellate court may con-
sider and give weight to the fact that the trial court observed the wit-
nesses and accepted one version of the facts over the other.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error.
Juvenile court proceedings are special proceedings, and an order in a
juvenile special proceeding is final and appealable if it affects a parent’s
substantial right to raise his or her child.
5. ____: ____: ____: ____. An order which is entered after a child is
adjudicated to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Cum. Supp. 2014) and which requires a parent to complete some sort
of rehabilitation plan affects a substantial right of the parent and is, thus,
generally, a final, appealable order.
6. Juvenile Courts: Final Orders: Time: Appeal and Error. Where 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
- 593 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
subsequent order by itself does not affect a substantial right and does not
extend the time in which the original order may be appealed.
7. Juvenile Courts: Jurisdiction. When a juvenile court finds a child to
be within the meaning of Neb. Rev. Stat. § 43-247 (Cum. Supp. 2014),
it is vested with jurisdiction not only over the child but also over the
child’s parents.
8. Juvenile Courts: Parental Rights. A juvenile court has the discretion-
ary power to prescribe a reasonable program for parental rehabilitation
to correct the conditions underlying the adjudication that a child is a
juvenile within the Nebraska Juvenile Code.
9. ____: ____. The provisions of a rehabilitation plan must be reasonably
related to the plan’s ultimate objective of reuniting parent with child.
10. Juvenile Courts: Child Custody. Juvenile courts are accorded broad
discretion in determining the placement of an adjudicated child and to
serve that child’s best interests.
11. Child Custody: Parental Rights. The parental preference doctrine
holds that in a child custody controversy between a biological parent
and one who is neither a biological nor an adoptive parent, the biologi-
cal parent has a superior right to custody of the child.
Appeal from the Separate Juvenile Court of Lancaster
County: Roger J. Heideman, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Joe Kelly, Lancaster County Attorney, and Christopher M.
Reid for appellee.
Moore, Chief Judge, and Irwin and Inbody, Judges.
Irwin, Judge.
I. INTRODUCTION
DeKarlos H. appeals from two separate orders entered
by the separate juvenile court of Lancaster County. In case
No. A-15-417, DeKarlos appeals from the juvenile court’s
order which requires him to attend both a domestic violence
batterers’ intervention course and a victims’ impact group
prior to the court’s considering DeKarlos as a viable place-
ment for his daughter, DeKandyce H. In case No. A-15-694,
- 594 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
DeKarlos appeals from the juvenile court’s order which con-
tinued DeKandyce’s placement in a foster home, rather than
placing her with DeKarlos. The two appeals were consolidated
for briefing in this court, and we consolidate them for opinion
as well.
Upon our de novo review of the record, we affirm the orders
of the juvenile court in their entirety.
II. BACKGROUND
This appeal involves DeKarlos and his daughter, DeKandyce,
born in October 2007. The juvenile court proceedings
below also involve DeKandyce’s mother, Everlyn B., and
DeKandyce’s half sister, Miah T. However, Everlyn and Miah
are not involved in this appeal and their involvement in the
juvenile court proceedings will only be discussed to the extent
necessary to provide context for the circumstances giving rise
to this appeal.
On July 14, 2014, the State filed a petition alleging that
DeKandyce, who was then 6 years old, was a child within
the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013)
due to the faults or habits of Everlyn, DeKandyce’s custodial
parent. Specifically, the petition alleged that on or about July
11, Everlyn was under the influence of alcohol and threatened
to strike or stab Miah, who was then 11 years old. Although
DeKandyce was not the target of Everlyn’s violent behavior,
she was present during this incident. Ultimately, DeKandyce
and Miah were removed from Everlyn’s home and placed in
the temporary custody of the Department of Health and Human
Services (Department) for out-of-home placement.
A few days after the petition was filed, on July 16, 2014,
the juvenile court appointed DeKarlos with an attorney to rep-
resent his interests in the proceedings. DeKarlos was permitted
to have unsupervised visitations with DeKandyce, subject to
“random drop-ins” by Department workers.
On September 22, 2014, Everlyn pled no contest to the
allegations in the petition. As a result of Everlyn’s plea,
- 595 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
DeKandyce was adjudicated to be a child within the mean-
ing of § 43-247(3)(a). Subsequently, on January 21, 2015, the
juvenile court entered a dispositional order requiring Everlyn
to comply with a rehabilitation plan which was designed
to remedy the circumstances which resulted in DeKandyce’s
adjudication. In addition, in the January 21 order, the juve-
nile court required DeKarlos to participate in “domestic vio-
lence education” if he wanted to be considered for placement
of DeKandyce.
On April 1, 2015, a review hearing was held. DeKarlos
did not appear at this hearing. During this hearing, the fam-
ily’s Department case manager testified that since the January
2015 dispositional hearing, DeKarlos had not completed
a domestic violence education program. Although he had
enrolled in such a program, DeKarlos was discharged unsuc-
cessfully for failing to regularly attend the classes and for
lying to the instructor. DeKarlos indicated to the Department
that he did not plan on reenrolling in a domestic violence
education program. However, the case manager testified that
the Department continued to recommend that DeKarlos attend
such a program prior to being considered as a placement for
DeKandyce. In addition, the court report authored by the case
manager and offered, without objection, by the State at the
review hearing reveals that the Department’s recommendation
that DeKarlos attend domestic violence education stemmed
from DeKarlos’ criminal history. DeKarlos had been arrested
for incidents of domestic violence on multiple occasions,
including in August 2014, after the current juvenile court pro-
ceedings had been initiated. The victim in the August 2014
incident was Everlyn.
After the April 1, 2015, review hearing, the juvenile court
entered an order. As a part of that order, the court required
DeKarlos to attend and successfully complete both a domestic
violence batterers’ intervention course and a victims’ impact
group if he wished to be considered as a placement for
DeKandyce. In addition, immediately after the review hearing,
- 596 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
on April 2, the State filed a supplemental petition alleging that
DeKandyce was a child within the meaning of § 43-247(3)(a)
(Cum. Supp. 2014) due to the faults or habits of DeKarlos.
Specifically, the petition alleged that although DeKarlos knew
that DeKandyce had been removed from Everlyn’s home
and placed in foster care, DeKarlos had “failed to fully par-
ticipate in the neglect case involving DeKandyce . . . and/
or ha[d] failed to place himself in a position to have place-
ment of DeKandyce . . . and/or assume the care and custody
of DeKandyce.”
DeKarlos appealed from the court’s April 2015 order in case
No. A-15-417.
Approximately 1 month after DeKarlos filed his appeal in
case No. A-15-417, DeKandyce’s foster parents, who were
DeKarlos’ cousin and his wife, notified the Department that
they did not want to care for DeKandyce and Miah any longer.
The foster parents reported that they felt like both Everlyn and
DeKarlos were harassing them.
As a result of the foster parents’ request that DeKandyce
and Miah be removed from their home, the Department placed
the girls in a nonrelative foster home and filed a motion for
approval of a placement change with the juvenile court. The
juvenile court approved the placement change pending a hear-
ing, which was scheduled for June 25, 2015.
At the June 25, 2015, hearing, the family’s case manager
testified. She indicated that both DeKandyce and Miah were
removed from the home of DeKarlos’ cousin at the request
of his cousin’s wife. It was reported to the case manager that
the foster parents were being harassed by both Everlyn and
DeKarlos. Specifically, as to DeKarlos, it was reported that
DeKarlos made derogatory comments about his cousin and his
cousin’s wife while he was intoxicated. In addition, DeKarlos
almost got into an altercation with his cousin due to these
derogatory remarks.
The case manager testified that when DeKandyce was
removed from her foster home, DeKarlos was not considered
- 597 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
as a possible placement for DeKandyce. The Department did
not consider DeKarlos because he had not completed any
domestic violence education; because he had multiple entries
on a child abuse and neglect registry indicating that he had
previously emotionally or physically neglected seven differ-
ent children; and because in the 11 months the juvenile court
proceedings had been pending, DeKarlos had been incarcerated
three different times. In addition, at the time of the June 25,
2015, hearing, DeKarlos had an outstanding warrant for his
arrest due to his failure to pay child support.
The case manager did indicate, however, that both
DeKandyce and Miah had been placed with DeKarlos dur-
ing a prior juvenile court case and for a few days around the
Christmas holiday during the current juvenile court case. The
case manager was not aware of any concerns reported during
these placements.
DeKarlos also testified at the hearing. He denied ever
harassing his cousin’s family. He indicated that he was not
happy with DeKandyce’s new foster home because he received
fewer telephone calls and visits with DeKandyce since she had
been moved. He testified that he wanted both DeKandyce and
Miah to be placed with him. He believed that he was capable
of providing a safe environment for the girls. He also refuted
the case manager’s testimony about his inclusion on the child
abuse and neglect registry because he was working to get
those entries expunged.
After the hearing, the juvenile court entered an order approv-
ing the current placement of DeKandyce in a nonrelative fos-
ter home.
DeKarlos also appeals from this order.
III. ASSIGNMENTS OF ERROR
In case No. A-15-417, DeKarlos alleges that the juvenile
court erred in requiring him to attend a domestic violence bat-
terers’ intervention course and a victims’ impact group before
he would be considered as a placement for DeKandyce.
- 598 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
In case No. A-15-694, DeKarlos alleges that the juvenile
court erred in failing to place DeKandyce in his home.
IV. ANALYSIS
1. Standard of R eview
[1] 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. In re Interest of Karlie
D., 283 Neb. 581, 511 N.W.2d 214 (2012).
2. A ppeal in Case No. A-15-417
In case No. A-15-417, DeKarlos appeals from the juve-
nile court’s April 2015 order which requires him to attend a
domestic violence batterers’ intervention course and a vic-
tims’ impact group before he would be considered as a place-
ment for DeKandyce. However, before we address the merits
of DeKarlos’ argument on appeal, we must first determine
whether the April 2015 order DeKarlos is appealing from is a
final, appealable order.
[2-4] In a juvenile case, as in any other appeal, before
reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdic-
tion over the matter before it. In re Interest of Octavio B. et
al., 290 Neb. 589, 861 N.W.2d 415 (2015). For an appellate
court to acquire jurisdiction of an appeal, there must be a final
order entered by the court from which the appeal is taken. Id.
Juvenile court proceedings are special proceedings, and an
order in a juvenile special proceeding is final and appealable
if it affects a parent’s substantial right to raise his or her child.
See id. Thus, if the juvenile court’s order requiring DeKarlos
to attend a domestic violence batterers’ intervention course
and a victims’ impact group before he would be considered
as a placement for DeKandyce affected his substantial right to
- 599 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
raise DeKandyce, the order was final and appealable. But if the
order did not affect a substantial right, we lack jurisdiction and
must dismiss the appeal.
[5] A substantial right is an essential legal right, not a mere
technical right. Id. Whether a substantial right of a parent has
been affected by an order in juvenile court litigation is depen-
dent upon both the object of the order and the length of time
over which the parent’s relationship with the juvenile may
reasonably be expected to be disturbed. Id. An order which is
entered after a child is adjudicated to be within the meaning of
§ 43-247(3)(a) and which requires a parent to complete some
sort of rehabilitation plan affects a substantial right of the par-
ent and is, thus, generally, a final, appealable order. See, In re
Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672
(2003); In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d
109 (1998). As such, it would appear that the April 2015 order
requiring DeKarlos to attend a domestic violence batterers’
intervention course and a victims’ impact group before he
would be considered as a placement for DeKandyce affected
his substantial right to raise DeKandyce and is a final, appeal-
able order.
[6] However, the State argues that the April 2015 order
is not a final, appealable order because it “merely alters”
the juvenile court’s order from January 2015 which required
DeKarlos to attend domestic violence education before he
would be considered as a placement for DeKandyce. Brief
for appellee at 13. It is well settled that in juvenile cases,
where an order from a juvenile court is already in place and a
subsequent order merely extends the time for which the pre-
vious order is applicable, the subsequent order by itself does
not affect a substantial right and does not extend the time in
which the original order may be appealed. See, e.g., In re
Interest of Mya C. & Sunday C., 286 Neb. 1008, 840 N.W.2d
493 (2013). Stated another way, a dispositional order which
merely continues a previous determination of the juvenile
court is not an appealable order. In re Interest of Octavio B.
- 600 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
et al., supra; In re Interest of Diana M. et al., 20 Neb. Ct. App.
472, 825 N.W.2d 811 (2013). See In re Interest of Mya C. &
Sunday C., supra.
We recognize that the juvenile court’s April 2015 order
which requires DeKarlos to attend a domestic violence batter-
ers’ intervention course and a victims’ impact group before he
would be considered as a placement for DeKandyce is similar
to its January 2015 order which required DeKarlos to attend
domestic violence education before he would be considered
as a placement for DeKandyce. But, even though the orders
are similar, they are not the same. The April 2015 order is
much more specific about exactly which domestic violence
education classes DeKarlos is required to attend. In addition,
the April 2015 order actually requires DeKarlos to attend two
separate courses: a domestic violence batterers’ intervention
course and a victims’ impact group. The practical effect of the
court’s decision to require DeKarlos to attend two separate
courses may be that it takes DeKarlos a longer period of time
to complete the courses and, thus, takes him a longer period of
time to obtain placement of DeKandyce.
Because of the fundamental and material differences
between the requirements prescribed in the January 2015 order
and in the April 2015 order, we conclude that the April 2015
order is not merely a continuation of the previous order. An
order that adopts a case plan with a material change in the
conditions for reunification with a parent’s child is a crucial
step in proceedings that could possibly lead to the termination
of parental rights. See In re Interest of Mya C. & Sunday C.,
supra. As such, we conclude that the April 2015 order affects
a substantial right of DeKarlos and is appealable.
Having concluded that the April 2015 order is final and
appealable, we now discuss the substance of DeKarlos’ argu-
ments on appeal. DeKarlos asserts that the juvenile court
erred in requiring him to attend a domestic violence batterers’
intervention course and a victims’ impact group before he
would be considered as a placement for DeKandyce because
- 601 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
he “is not an adjudicated parent” and his participation in these
classes would not correct the circumstances which gave rise
to DeKandyce being adjudicated as a child within the mean-
ing of § 43-247(3)(a). Brief for appellant at 19. DeKarlos
also asserts that there was insufficient evidence to show
that DeKarlos’ admittedly undesirable behavior has in any
way impacted DeKandyce. Upon our de novo review of the
record, we cannot say that the juvenile court erred in its April
2015 order.
DeKarlos asserts that the court erred in requiring him to
attend a domestic violence batterers’ intervention course and
a victims’ impact group before he would be considered as a
placement for DeKandyce because DeKandyce was adjudicated
as a child within the meaning of § 43-247(3)(a) only as to
Everlyn, not as to DeKarlos. He suggests that the juvenile court
lacks the authority to impose requirements and restrictions on
him before he is subject to formal adjudication proceedings.
DeKarlos’ assertion in this regard is without merit.
[7] Section 43-247(5) provides that the juvenile court shall
have jurisdiction of “[t]he parent, guardian, or custodian of
any juvenile described in this section.” The plain language
of this subsection suggests that when a juvenile court finds
a child to be within the meaning of § 43-247, it is vested
with jurisdiction not only over the child but also over the
child’s parents.
In In re Interest of Devin W. et al., 270 Neb. 640, 707
N.W.2d 758 (2005), the Supreme Court analyzed the lan-
guage of § 43-247(5) as it was then written. Neb. Rev. Stat.
§ 43-247(5) (Cum. Supp. 2002) provided that the juvenile
court shall have jurisdiction over “[t]he parent, guardian, or
custodian who has custody of any juvenile described in this
section.” The court determined that “pursuant to the plain
meaning of [§ 43-247(5)], the juvenile court’s jurisdiction is
extended to parents who have custody of any juvenile who
has been found to be a child described in § 43-247.” In re
Interest of Devin W. et al., 270 Neb. at 652, 707 N.W.2d at
- 602 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
766-67. The court then held that, because of this statutory
language, the juvenile court had jurisdiction over the child
at issue and the child’s custodial father, even though the
child was adjudicated to be a child within the meaning of
§ 43-247(3)(a) only due to the acts of his mother. The court
specifically disapproved of the concept that a child is “adju-
dicated as to” one parent or the other because it is the child,
not the parent, that is adjudicated in order to protect the
child’s rights. The court distinguished that the parents’ rights
are determined in the dispositional phase of the case, not the
adjudication phase.
In 2008, a few years after the Supreme Court decided In re
Interest of Devin W. et al., supra, § 43-247(5) was amended
such that the language which indicated that a juvenile court’s
jurisdiction extended only to a custodial parent, guardian, or
custodian whose child has been found to be within the mean-
ing of § 43-247 was eliminated. See § 43-247 (Reissue 2008).
As we stated above, § 43-247(5) (Cum. Supp. 2014) currently
provides that the juvenile court shall have jurisdiction of “[t]he
parent, guardian, or custodian of any juvenile described in this
section.” As a result of this change to the statutory language,
the juvenile court’s jurisdiction is now extended to any parent
or guardian of a child who has been found to be within the
meaning of § 43-247.
DeKandyce was adjudicated to be a child within the mean-
ing of § 43-247(3)(a). Due to DeKandyce’s adjudication, the
juvenile court has jurisdiction over DeKandyce, Everlyn,
and DeKarlos. And, because the court has jurisdiction over
DeKarlos, it had the authority to require DeKarlos to submit to
domestic violence education courses prior to considering him
for placement of DeKandyce.
Now that we have determined that the juvenile court had
the authority to enter the April 2015 order which requires
DeKarlos to participate with a rehabilitation plan by attend-
ing a domestic violence batterers’ intervention course and a
victims’ impact group, we now must determine whether such
- 603 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
an order was proper under the circumstances of this case.
On appeal, DeKarlos asserts that the provisions of the reha-
bilitation plan were unreasonable and unrelated to the circum-
stances which caused DeKandyce to be adjudicated pursuant
to § 43-247(3)(a). Upon our de novo review, we affirm the
juvenile court’s order.
[8,9] A juvenile court has the discretionary power to pre-
scribe a reasonable program for parental rehabilitation to cor-
rect the conditions underlying the adjudication that a child is
a juvenile within the Nebraska Juvenile Code. In re Interest of
Rylee S., 285 Neb. 774, 829 N.W.2d 445 (2013). The provi-
sions of a rehabilitation plan must be reasonably related to
the plan’s ultimate objective of reuniting parent with child.
See, id; In re Interest of C.D.C., 235 Neb. 496, 455 N.W.2d
801 (1990).
In this case, DeKandyce was adjudicated to be a child
within the meaning of § 43-247(3)(a) because she was placed
at risk of harm when she witnessed her mother act aggres-
sively and violently toward DeKandyce’s half sister, Miah, and
because she lacked a safe and stable home. While the specific
circumstances leading to DeKandyce’s adjudication involved
only Everlyn and not DeKarlos, there was evidence presented
during the juvenile court proceedings which indicated that
DeKarlos also may not be able to provide DeKandyce a safe
and stable home free from domestic violence.
This evidence revealed that DeKarlos has a history of
engaging in acts of domestic violence. In fact, DeKarlos was
involved in an altercation with Everlyn after the current juve-
nile court proceedings were initiated. Given this evidence, it
was reasonable for the juvenile court to require DeKarlos to
participate in a domestic violence batterers’ intervention course
and a victims’ impact group before considering him for place-
ment of DeKandyce. Such domestic violence education will
assist DeKarlos in his efforts to provide DeKandyce with a
safe and stable home which is free from domestic violence. In
addition, the courses may help DeKarlos better understand how
- 604 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
to parent DeKandyce given that she has previously witnessed
an incident of domestic violence. Although there was no evi-
dence that DeKandyce has ever witnessed DeKarlos engage
in domestic violence, the evidence that DeKarlos does have a
history of such behavior coupled with DeKandyce’s experience
with domestic violence, in general, justifies the order requiring
DeKarlos to attend the classes.
3. A ppeal in Case No. A-15-694
In case No. A-15-694, DeKarlos appeals from the juvenile
court’s June 2015 order which continued DeKandyce’s place-
ment in a nonrelative foster home rather than placing her with
DeKarlos. Specifically, he argues that he is a fit parent who can
provide DeKandyce with a safe and stable home environment.
Upon our de novo review of the record, we affirm the order
of the juvenile court continuing DeKandyce’s placement in a
nonrelative foster home.
[10] Neb. Rev. Stat. § 43-285 (Cum. Supp. 2014) provides
that once a child has been adjudicated under § 43-247(3), the
juvenile court must ultimately decide where a child should be
placed. And, juvenile courts are accorded broad discretion in
determining the placement of an adjudicated child and to serve
that child’s best interests. In re Interest of Karlie D., 283 Neb.
581, 811 N.W.2d 214 (2012). However, this discretion, while
broad, is not without limitation because of the parental prefer-
ence doctrine.
[11] The parental preference doctrine holds that in a child
custody controversy between a biological parent and one who
is neither a biological nor an adoptive parent, the biological
parent has a superior right to custody of the child. In re Interest
of Stephanie H. et al., 10 Neb. Ct. App. 908, 639 N.W.2d 668
(2002). And,
“[a] court may not properly deprive a biological or adop-
tive parent of the custody of the minor child unless it is
affirmatively shown that such parent is unfit to perform
the duties imposed by the relationship or has forfeited
- 605 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
that right; neither can a court deprive a parent of the
custody of a child merely because the court reasonably
believes that some other person could better provide for
the child.”
Id. at 924, 639 N.W.2d at 681, quoting In re Interest of Amber
G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996).
Because of the parental preference doctrine, the propriety of
the juvenile court’s June 2015 order concerning DeKandyce’s
placement depends on whether there is affirmative evidence
that DeKarlos is presently unfit to care for DeKandyce. The
evidence presented during the juvenile court proceedings
revealed that DeKarlos has failed to complete any domestic
violence education classes despite being ordered to do so by
the juvenile court before he would be considered as a place-
ment for DeKandyce and despite having a history of engag-
ing in domestic violence. In addition, there was evidence that
DeKarlos has a history of neglecting children in his care. In
fact, he is currently listed on the child abuse and neglect regis-
try. In April 2015, the State filed a supplemental petition alleg-
ing that DeKandyce was at risk for harm because of DeKarlos’
neglect of her. And, DeKarlos has had recent and repeated con-
tacts with law enforcement. During the 11 months the juvenile
court proceedings were pending, DeKarlos was incarcerated
three different times. In addition, at the time of the June 25
hearing, DeKarlos had an outstanding warrant for his arrest
due to his failure to pay child support.
Based upon our review of this evidence, we conclude that
there was sufficient evidence presented to demonstrate that
DeKarlos is currently not fit to care for DeKandyce. We do
recognize that there was limited evidence presented which
suggested that DeKarlos had cared for DeKandyce during
previous juvenile court proceedings and had provided respite
care for her for a couple of days over the holidays during the
current juvenile court proceedings. And, although DeKarlos
suggests that this evidence indicates that there should be no
concern about his ability to appropriately care for DeKandyce,
- 606 -
Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MIAH T. & D e KANDYCE H.
Cite as 23 Neb. Ct. App. 592
we cannot characterize the evidence in this way. Caring for a
child on a limited basis and with what appears to have been
a moderate amount of supervision by Department workers is
much different than long-term, permanent placement with-
out such supervision. The evidence presented by the State
created significant doubts about DeKarlos’ present ability to
provide DeKandyce with a safe and stable home environment.
Evidence of his limited contact with DeKandyce during the
juvenile court proceedings does not mitigate this doubt.
We affirm the June 2015 order of the juvenile court which
continued placement of DeKandyce in a nonrelative fos-
ter home.
V. CONCLUSION
Upon our de novo review of the record, we affirm the orders
of the juvenile court in cases Nos. A-15-417 and A-15-694 in
their entirety.
A ffirmed.