In re Interest of A.A. et al.

Caselaw Number
310 Neb. 679
Filed On


Upon remand, following the Supreme Court’s opinions in In re Interest of A.A. et al., 307 Neb. 817 (2020) (A.A. I), and In re Interest of A.A. et al., 308 Neb. 749 (2021) (A.A. II) (denying motion for attorney fees), the Separate Juvenile Court of Lancaster County held a hearing on reunifying the juvenile, B.C., from a foster home to the home of one of the child’s biological parents. The juvenile court entered an order placing physical custody of the minor child with his biological mother, Stacy, from whom B.C. had initially been taken. It also considered and overruled a motion for legal custody and placement of B.C. filed by the biological father, Joshua. Joshua appealed the order of the juvenile court, claiming that the order placing custody of B.C. with Stacy exceeded the Supreme Court’s mandate in In re Interest of A.A. et al., 307 Neb. 817 (2020) (A.A. I). The Supreme Court affirmed the decision of the juvenile court.

In the first opinion issued in this case, In re Interest of A.A. et al., 307 Neb. 817 (2020) (A.A. I), the Supreme Court concluded that Joshua was deprived of due process when the court refused to recognize his parental preference over the State to B.C.’s custody and specifically by finding Joshua unfit without any formal allegation that would have placed Joshua on notice that he would be required to defend against an attempt by the State to prove he had lost the presumption of parental preference. The Supreme Court remanded the cause to the juvenile court to develop a transition plan into Joshua’s temporary physical custody after establishing the most up-to-date information.

DHHS proposed to Joshua a transition plan for placement of B.C. with Joshua. However, Joshua opposed DHHS’s transition plan and in an affidavit swore that he had no intention in taking part in the development or implementation of a plan for the transition of B.C. into his care. As a result, without an appropriate transition plan, the juvenile court found it was not empowered to place custody with Joshua and still adhere to the Supreme Court’s mandate. The juvenile court overruled Joshua’s motion for legal custody and motion for placement.

Next, the juvenile court turned to whether B.C. should be reunited with his mother, Stacy. The court found that Stacy had worked diligently with DHHS to correct the issues that led to the removal of B.C. The juvenile court found that B.C. was no longer in need of a foster care placement and that it was in the best interests of B.C. to return to the physical custody of Stacy, subject to satisfaction of the terms of a transition plan. The transition plan, similar to that which DHHS had proposed to Joshua, provided that (1) DHHS will conduct a walkthrough of the residence of the mother to ensure it is in appropriate condition prior to placement; (2) the mother shall allow DHHS and the guardian ad litem reasonable access to B.C.; (3) the assigned DHHS case manager shall have the ability to speak directly to the mother regarding B.C.’s condition and needs, so long as B.C. remains a state ward; (4) the mother shall ensure that B.C.’s therapy continues, so long as B.C.’s therapist recommends a continued need for therapy services; (5) the mother shall ensure that B.C. is enrolled in school; (6) the mother shall fully cooperate with random drop-ins of her residence by DHHS or its designee; and (7) a family therapy session shall occur between B.C, his therapist, and the mother prior to placement back in the home of the mother, so that B.C. is adequately prepared for the transition. The foster parents would be invited to participate in this therapy session. The juvenile court granted DHHS’ motion for a placement change and ordered that the physical custody of B.C. be placed with Stacy upon her completion of the conditions of the above transition plan.

In affirming the order of the juvenile court, placing physical custody of B.C. with Stacy, the Supreme Court noted that temporary physical custody with a noncustodial parent should not create a substantial and unnecessary hindrance to efforts of reunification with the custodial parent. The Supreme Court clarified that nothing in the previous mandate was antithetical to reunification of B.C. with Stacy, nor did the Court’s previous disposition undermine the juvenile court’s power to expeditiously proceed with Stacy’s rehabilitative plan and placement of B.C. back in her care. The juvenile court retained continuing jurisdiction even during Joshua’s prior appeal. The Supreme Court concluded that Joshua’s sole assignment of error in which he claimed that placement of B.C with Stacy exceeded the mandate was without merit.