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In re Jaydon W.

Court of Appeals of Nebraska

February 20, 2018

In re Interest of Jaydon W. & Ethan W.. children under 18 years of age.
Mathew W., appellant. State of Nebraska, appellee.

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.

         2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken.

         4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. Juvenile court proceedings are special proceedings, and an order in a juvenile special proceeding is final and appealable if it affects a parent's substantial right to raise his or her child.

         5. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

         6. Juvenile Courts: Parental Rights: Parent and Child: Time: Final Orders. Whether a substantial right of a parent has been affected by an order in juvenile court litigation is dependent upon both the object of the order and the length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed.

         7. Juvenile Courts: Judgments: Parental Rights. A review order in a juvenile case does not affect a parent's substantial right if the court adopts a case plan or permanency plan that is almost identical to the plan that the court adopted in a previous disposition or review order.

         [25 Neb.App. 563] 8. Juvenile Courts: Judgments: Appeal and Error. A dispositional order which merely continues a previous determination is not an appealable order.

         9. Child Custody: Visitation: Final Orders: Appeal and Error. Orders which temporarily suspend a parent's custody and visitation rights do not affect a substantial right and are therefore not appealable.

         10. Parental Rights. The right of parents to maintain custody of their child is a natural right, subject only to the paramount interest which the public has in the protection of the rights of the child.

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

         12. Parental Rights: Due Process: Appeal and Error. In deciding due process requirements in a particular case, an appellate court must weigh the interest of the parent, the interest of the State, and the risk of erroneous decision given the procedures in use. Due process is flexible and calls for such procedural protections as the particular situation demands.

         13. Child Custody: Parental Rights. Under the parental preference principle, a parent's natural right to the custody of his or her child trumps the interests of strangers, including the State, to the parent-child relationship and the preferences of the child.

         14. Constitutional Law: Public Policy: Child Custody: Parental Rights. Unless it has been affirmatively shown that a biological or adoptive parent is unfit or has forfeited his or her right to custody, the U.S. Constitution and sound public policy protect a parent's right to custody of his or her child.

         15. Constitutional Law: Parental Rights: Presumptions. Absent circumstances which justify terminating a parent's constitutionally protected right to care for his or her child, due regard for the right requires that a biological or adoptive parent be presumptively regarded as the proper guardian for his or her child.

         16. Juvenile Courts: Parental Rights. The parental preference doctrine is applicable even to an adjudicated child.

         17. Parental Rights: Proof. Forfeiting the right to custody under the parental preference doctrine must be proved by clear and convincing evidence.

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

         19. Parental Rights: Proof. Substantial, continuous, and repeated neglect of a child may be established by the complete indifference of a parent for a child's welfare over a long period of time.

         [25 Neb.App. 564] 20. Child Custody: Parental Rights: Proof. The initial burden of proving parental unfitness or forfeiture of a parent's right to custody is on the State.

         21. Constitutional Law: Parental Rights. Whether termination of parental rights is in a child's best interests is not simply a determination that one environment or set of circumstances is superior to another, but it is instead subject to the overriding recognition that the relationship between parent and child is constitutionally protected.

         22. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of a child are served by reuniting the child with his or her parent that is overcome only when the parent has been proved unfit or there has been a forfeiture.

         23. Child Custody: Parental Rights. While the best interests of the child remain the lodestar of child custody disputes, a parent's superior right to custody must be given its due regard, and absent its ...

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