In re Interest of Danajah G.

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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

In re I nterest of
Danajah G. et al.,
children under18 years of age.
State of Nebraska, appellee, v.
Robyn G., appellee, and Darneil K.,
intervenor-appellant.
___ N.W.2d ___

Filed September 15, 2015. No. A-14-709.

 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. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
 3. Child Custody: Visitation: Convicted Sex Offender. Pursuant to Neb.
Rev. Stat. § 43-2933(2) (Reissue 2008), no person shall be granted cus-
tody, parenting time, visitation, or other access with a child if the per-
son has been convicted under Neb. Rev. Stat. § 28-319 (Reissue 2008)
(first degree sexual assault) and the child was conceived as a result of
that violation.
  4. ____: ____: ____. Neb. Rev. Stat. § 43-2933(2) (Reissue 2008) does not
provide for any exception to or discretion in its mandatory language.
 5. Child Custody: Visitation: Convicted Sex Offender: Statutes. Neb.
Rev. Stat. § 43-2933(2) (Reissue 2008) falls under the Parenting Act,
Neb. Rev. Stat. § 43-2920 et seq. (Reissue 2008 & Cum. Supp. 2014),
and not under the Nebraska Juvenile Code, Neb. Rev. Stat. § 43-245 et
seq. (Reissue 2008 & Cum. Supp. 2014).
 6. ____: ____: ____: ____. Neb. Rev. Stat. § 43-2933(2) (Reissue
2008) applies to cases under the Nebraska Juvenile Code when
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

parenting functions are at issue under chapter 42 of the Nebraska
Revised Statutes.
 7. Parental Rights. Parental rights constitute a liberty interest, and a par-
ent’s interest in the accuracy and justice of the decision to terminate his
or her parental rights is a commanding one.
 8. Due Process: Notice. Due process requires that parties at risk of depri-
vation of liberty interests be provided adequate notice and an oppor-
tunity to be heard appropriate to the nature of the proceeding and the
character of the rights which may be affected by it.

Appeal from the Separate Juvenile Court of Douglas County:
Douglas F. Johnson, Judge. Remanded with directions.
Barbara J. Prince for intervenor-appellant.
Elizabeth McClelland, Deputy Douglas County Attorney, for
appellee State of Nebraska.
Kate E. Placzek, of Law Office of Kate E. Placzek, for
appellee Robyn G.
Irwin, R iedmann, and Bishop, Judges.
Bishop, Judge.
Darneil K., the father of Danajah G. and an intervenor in
these juvenile court proceedings, appeals from an order of the
juvenile court which granted a motion to change Danajah’s
physical placement from Darneil’s home to the home of
Danajah’s mother, Robyn G. We remand the matter back to the
juvenile court with directions.
BACKGROUND
Robyn and Darneil are the parents of Danajah, born in
December 2006. On May 2, 2007, Darneil entered a plea of
guilty to first degree sexual assault, a Class II felony; Robyn
was the child victim (Robyn was 14 or 15 years of age at the
time of the offense and Darneil was 21 or 22 years of age). The
record suggests that Danajah was conceived as a result of the
“statutory rape” of Robyn by Darneil.
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

Robyn is also the mother of Nadiah G., born in March
2010; Jade G., born in December 2011; and Kaziah G., born
in December 2013. Darneil is not the father of Robyn’s other
children. Because these other children are not affected by this
appeal, they will be discussed only as necessary.
On July 18, 2007, the State filed a petition alleging that
Danajah was a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Cum. Supp. 2006), through no fault of Robyn,
in that (1) Robyn was placed into protective custody by law
enforcement on July 17, (2) Robyn was placed outside of the
parental home, (3) Robyn was “unable to provide proper care
and support for [Danajah] with assistance,” and (4) due to the
above allegations, Danajah was at risk for harm. On November
8, Robyn pled no contest to the allegations in the petition, and,
as noted in the court’s order filed on November 13, Danajah
was adjudicated accordingly.
In its disposition order filed on November 28 or 29, 2007
(the date on the file stamp is difficult to read), the court
stated that the permanency objective was family preservation.
However, in its order filed on January 20, 2009, the court
stated that the permanency objective was reunification with a
concurrent plan of adoption. And in its order filed on June 18,
the court struck reunification and adopted a permanency plan
of adoption; the court noted that Danajah had been in foster
care since July 18, 2007. Although Robyn appealed the June
18, 2009, order to the juvenile review panel, the review panel
affirmed the order of the juvenile court.
Also in the June 18, 2009, order, the juvenile court noted
that putative father Darneil appeared and requested DNA test-
ing, which the court ordered. After obtaining DNA testing,
Darneil filed a complaint on December 8 to intervene. In an
order filed on January 14, 2010, the court granted Darneil’s
complaint to intervene. Also on January 14, the court placed
Danajah with Robyn, who was at “Family Works” for resi-
dential drug treatment. The court stated that the perma-
nency objective was adoption with a concurrent plan of
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

reunification, provided that Robyn successfully completed
treatment at Family Works and maintained consistent thera-
peutic progress.
In an order filed on September 15, 2010, the court found
that the permanency objective was ongoing family preserva-
tion and struck the alternative plan of adoption. The court
relieved the Nebraska Department of Health and Human
Services (DHHS) of all responsibility in the matter. The court
retained jurisdiction as to the custody issue between Robyn
and Darneil.
On December 22, 2011, the State filed a supplemental peti-
tion alleging that Danajah and her two sisters, Nadiah and
Jade, were children within the meaning of § 43-247(3)(a)
(Reissue 2008) because Robyn and newborn Jade tested posi-
tive for PCP. Also on December 22, the State filed a motion
for immediate custody of all three children, which motion was
granted by the juvenile court; thus, all three children were
placed in the temporary custody of DHHS.
On February 16, 2012, Darneil filed a motion for placement
of Danajah, which was granted on March 9 over the objection
of Robyn and the guardian ad litem.
In its order filed on March 23, 2012, the court noted that
the adjudication and disposition hearing was held on March
22; however, those proceedings do not appear in our record.
As noted in the order, Robyn pled no contest to the portion
of the supplemental petition alleging that her use of alcohol
or controlled substances placed her children at risk for harm;
and the court adjudicated Danajah and her sisters accord-
ingly. In a separate order of that same date, the court noted
it was reported to the court that Danajah said Darneil whips
her and that when “questioned further,” Danajah would “shut
down” and give only one-word answers. The court ordered that
Danajah was to be immediately removed from Darneil’s home
to undergo a forensic interview.
On May 17, 2012, Darneil filed a “Motion for Detention
Review and Early Review” due to Danajah’s continuing
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

out-of-home placement without any filing by the State against
Darneil. Also on May 17, the guardian ad litem filed an ex
parte motion to change visitation, requesting that Robyn’s
visitation change from unsupervised to supervised due to her
having tested positive for PCP; the court granted the guardian
ad litem’s motion that same day. On May 24, the court ordered
that Danajah be returned to Darneil “within 48 hours unless
there are further filings or charges” (emphasis omitted). No
filings or charges were made against Darneil, and Danajah was
subsequently placed with Darneil.
On July 27, 2012, Robyn filed a motion for placement
requesting that Danajah be placed with her and Danajah’s
siblings at Family Works. In an order filed on August 1, the
court ordered that Danajah was to remain in the custody of
DHHS, but placed with Darneil. The court also changed the
permanency plan for Danajah to family preservation with
Darneil. Darneil was ordered to undergo a “Nebraska Safe
Start Assessment” and participate in child-parent psychother-
apy. Robyn was ordered to successfully complete residential
inpatient treatment; undergo random drug testing a minimum
of twice per week; not possess or ingest alcohol or controlled
substances unless prescribed by a licensed, practicing physi-
cian; participate in family therapy with Danajah; participate
in unsupervised and overnight visitation when sufficient thera-
peutic progress had been made and upon the recommenda-
tion of Danajah’s therapist; undergo a Nebraska Safe Start
Assessment; and participate in child-parent psychotherapy. The
court further ordered that Robyn and Darneil “shall address
placement and custody of . . . Danajah . . . through alternative
dispute resolution” (emphasis omitted).
In its review and permanency planning order filed on
December 21, 2012, the court stated that the permanency plan
for Danajah was ongoing family preservation with Darneil.
Robyn was ordered to continue to participate in her substance
abuse treatment, undergo random drug testing a minimum of
once per week, not possess or ingest alcohol or controlled
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

substances unless prescribed by a doctor, participate in fam-
ily therapy with Danajah, and participate in unsupervised and
overnight visitation with Danajah.
In its review and permanency planning order filed on June
12, 2013, the court stated that the permanency objective was
ongoing family preservation. The court ordered Robyn and
Darneil to participate in alternative dispute resolution regard-
ing custody issues and a parenting plan. In a status check order
filed on August 9, the court noted that Robyn attended the
scheduled alternative dispute resolution, but that Darneil did
not. The court again ordered both parents to attend and partici-
pate in alternative dispute resolution.
In its review and permanency planning order filed on
November 22, 2013, the court stated that the permanency
objective was ongoing family preservation. The court ordered
Robyn and Darneil to undergo “random, frequent, observed
drug testing” upon the request of DHHS or Nebraska Families
Collaborative (NFC). We note that the review and perma-
nency hearing was held on November 21, but that the order
was not filed until November 22. Darneil was drug tested on
November 21 and tested positive for marijuana. Robyn was
also tested on November 21, and her test came back negative
for all substances.
On February 19, 2014, Janaye P., Darneil’s live-in girlfriend,
physically assaulted Robyn in the presence of all of Robyn’s
children. The assault took place in front of Darneil’s home, and
Darneil was present during the assault.
On March 13, 2014, Robyn filed a motion to show cause
against DHHS and NFC. She also filed a motion for change of
placement of Danajah from Darneil’s home to Robyn’s home.
The court ordered the parties, and the parties agreed, to obtain
testimony by deposition and submit written arguments.
We now summarize the deposition testimony. Jamise
Williams is a family permanency specialist with NFC and
was assigned to this case in early 2012. In her deposition,
she testified that Danajah had been placed with Darneil since
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

May 26, 2012. Williams ran a full background check on
Darneil prior to placement and was aware that he was a regis-
tered sex offender and aware of his criminal history regarding
drugs (including “intent to deliver crack cocaine”). Williams
stated that Darneil lived with his girlfriend Janaye and that the
two “frequently h[e]ld themselves out to be married.”
Williams testified that when a report of child abuse or
neglect is made to a child abuse hotline and has been accepted
for investigation by hotline personnel, NFC is informed, but
the case is assigned to a DHHS initial assessment worker.
If the report is not accepted for investigation by hotline per-
sonnel, then NFC will follow up on the allegation. Williams
testified that both Robyn and Darneil called to inform her of
the February 19, 2014, incident between Robyn and Janaye.
Prior to being notified that a report had been made to the
child abuse hotline and that it had been accepted for investiga-
tion by DHHS, Williams interviewed Robyn, Darneil, Janaye,
and Danajah. Williams also spoke with Danajah’s therapist,
Machaela Hackendahl, regarding the incident.
Williams testified that Robyn told her she went to Darneil’s
home to pick up Danajah, but was a little late. Prior to arriv-
ing, Robyn received text messages from Darneil and Janaye
saying that she was a bad mother and drug addict and that she
did not care about Danajah. When Robyn arrived at Darneil’s
home, he told her to get out of the car, they were arguing, and
then Darneil told Janaye to “whip Robyn’s ass.” Robyn stated
that she was still in the car and that Janaye reached through
the open car window and hit Robyn in the face and pulled
Robyn’s hair. Danajah got in the car, and Robyn drove off.
The incident occurred in front of Danajah, as well as Robyn’s
other children, who were also in the car. When Williams saw
Robyn on February 20, Robyn had visible injuries; Robyn’s
lips were swollen, and three patches of her hair were miss-
ing. Williams testified that Danajah told her the same story
as Robyn did, almost word for word. Williams had concerns
that Danajah might have been coached, but she did not know
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

for sure; she agreed it was possible that Danajah’s story was
the same because it recounted what happened. Danajah told
Williams that she did not want to go back to Darneil’s house
and that she did not feel safe there. Danajah also reported that
Darneil smoked “weed” around her “all of the time”; Darneil
was drug tested 1 week later and tested negative. Williams
also testified that Danajah had a history of telling “fibs” about
each parent.
Williams spoke with Darneil and Janaye, who both reported
that when Robyn arrived to pick up Danajah, Robyn got
out of her car, “got in Darneil’s face,” and made gestures
with her arms as if she wanted to hit him. Darneil and
Janaye told Williams that Janaye stepped in to defend Darneil
and hit Robyn. Neither Darneil nor Janaye said that Robyn
hit anyone.
On February 20, 2014, Darneil and Janaye filed petitions
and affidavits to obtain protection orders against Robyn. Their
affidavits contained accounts of the February 19 incident simi-
lar to the accounts they reported to Williams and made no
mention of Robyn’s hitting anyone during the incident. The
petitions were ultimately dismissed.
Jennifer White was the DHHS assessment worker assigned
to investigate the February 19, 2014, incident between Robyn
and Janaye. White testified that Danajah told her that Robyn
“pulled up” and Darneil yelled at Robyn to “get her ass” out of
the car, Janaye punched Robyn, and then Robyn drove away.
White testified that Danajah did not act frightened or scared.
White testified Danajah also told her that all of the “nice stuff”
she said about Darneil was not true and that all of the “mean
stuff” she said about Robyn was not true; White thought
Danajah was referring to statements Danajah made during
a November 2013 investigation. White was also concerned
about coaching, because Danajah said Robyn told her that she
might go to foster care and that she should tell White “what
had happened”; White did not clarify with Danajah whether
this meant to tell the truth.
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

When White spoke to Darneil and Janaye about the February
19, 2014, incident, they both reported that when Robyn arrived
to pick up Danajah, Robyn got out of her car, approached
Darneil, and made gestures with her arms as if she wanted to
hit him. They both said that Janaye stepped in between Robyn
and Darneil, Robyn hit Janaye twice, and then Janaye hit
Robyn back two or three times. Robyn then went back to her
car and left with Danajah and her other children. When White
spoke with Robyn, Robyn reported that Janaye hit her twice
in the head and pulled her hair. Robyn stated that she never
got out of her car and that she never hit Janaye. Robyn stated
that she went to a dental clinic and was sent to the emergency
room for her injuries.
Hackendahl, a clinical therapist, is Danajah’s individual
therapist and is the family therapist for Danajah and Darneil.
She spoke with Danajah the day after the February 19, 2014,
incident between Robyn and Janaye. Danajah told Hackendahl
that Robyn and Janaye got into a fight; Danajah did not say
anything else.
White determined that Danajah was not physically neglected.
Williams testified that Danajah was put into respite care for the
weekend and then allowed to return to Darneil’s home because
Danajah was determined to be safe. A family permanency
supervisor with NFC testified that NFC did not want Danajah
removed from Darneil’s home based on her having witnessed
one incident between Robyn and Janaye. Arrangements were
made so that Robyn and Darneil would not need to see each
other for future parenting time exchanges.
Deposition testimony was also received regarding other
aspects of Robyn’s and Darneil’s parenting abilities. Evidence
was presented that Darneil was convicted of possessing less
than 1 ounce of marijuana (and sentenced to pay a fine) after
Danajah was placed with him. He also tested positive for
marijuana in November 2013. However, Williams testified
that there was no evidence that Darneil’s drug use occurred in
front of Danajah or had any effect on her. Williams testified
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

that Danajah was safe with Darneil and Janaye, and Williams
had no concerns about Darneil’s parenting. Williams testi-
fied that over the course of the case, Janaye had tried to
keep the peace between Robyn and Darneil; that she had
never known Janaye to be aggressive until the incident on
February 19, 2014; and that Janaye “knows it was wrong.”
Williams testified that there was currently a district court
custody matter on file involving the parties. She preferred not
to change Danajah’s placement, if matters could be addressed
with services.
Hackendahl testified that she provided individual therapy
for Danajah and family therapy for Danajah and Darneil from
April 2012 to August 2013, at which point they “graduated”
due to meeting their goals. Hackendahl testified that Janaye
was part of the family therapy. Hackendahl resumed individual
therapy with Danajah in November 2013 due to Danajah’s
“escalating” behaviors at school. Hackendahl was providing
weekly individual therapy to Danajah; family therapy skills
were worked on the first and last 10 minutes of each session.
Hackendahl testified that Danajah’s general anxiety disorder
stemmed from a lack of permanency and that Robyn and
Darneil needed to work on coparenting. Hackendahl testi-
fied that she would have concerns about changing Danajah’s
placement at the time because custody had not been decided.
Hackendahl was worried that a lot of changes and moves could
increase Danajah’s symptoms of anxiety. Hackendahl testified
that it was not in Danajah’s best interests to change placement
at the time.
Hackendahl testified that she knew from the beginning
that Darneil was convicted of the statutory rape of Robyn,
but that he had done his time and had gotten placement of
Danajah. Hackendahl was also minimally aware of Darneil’s
past drug use; she knew that he tested positive for marijuana
in November 2013, but was not aware of his specific criminal
history related to drugs or that he admitted to the social use
of marijuana. Hackendahl had no concerns about Danajah’s
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

continuing presence in Darneil’s home. She testified that
Danajah and Darneil are attached and bonded.
Hackendahl testified that Danajah would sometimes say
that she did not want to go to Robyn’s house. And on several
occasions, Danajah said that if Robyn put “her high heels on,”
Danajah knew that Robyn would go out and get drunk. On a
couple occasions, Danajah said that Robyn would hit her with
a belt that had spikes on the end of it if Danajah came out of
her room when Robyn had people over. Hackendahl testified
that there would be several months where Danajah made no
reports about Robyn, and then there would be a month where
Danajah was reporting on Robyn weekly. Hackendahl testified
that Darneil tried to get Danajah excited for her visits with
Robyn and that he was positive about the visits.
Hackendahl had never met or spoken to Robyn. Hackendahl
initially received a referral for Danajah and Darneil, so that
was how she established therapy. When Hackendahl first
started therapy with Danajah, she called Robyn a few times
to get information, but Robyn never responded. Hackendahl
felt it would be therapeutically detrimental to bring Robyn
into her sessions with Danajah and Darneil at that point. She
also felt that it would be a conflict of interest, because she
was working with Darneil and Janaye, and that it could be
tricky keeping things confidential between different aspects
of the family. However, Hackendahl did consult with Hillary
Chaney, who was currently providing family therapy for
Robyn and Danajah.
According to Williams, Robyn had been “clean and sober”
since entering Family Works in May 2012; she was success-
fully discharged in November or December 2012. Robyn was
having unsupervised visits with Danajah for over a year. Her
current visitation schedule with Danajah was every Wednesday
overnight until Thursday morning and every other weekend
from after school on Friday until Sunday at 4 p.m. Robyn
had stable housing large enough for all of her children and
“generally always has a job.” Nadiah and Jade are placed with
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IN RE INTEREST OF DANAJAH G. ET AL.
Cite as 23 Neb. App. 244

Robyn. Kaziah has never been a ward of the State and has
always lived with Robyn.
Williams testified that in early 2013, she arranged family
therapy between Robyn and Danajah with a therapist who
was also to do outpatient treatment with Robyn for Family
Works aftercare. However, Robyn was discharged for miss-
ing appointments. Williams offered to do another referral, but
Robyn did not think that she and Danajah needed family ther-
apy at that time. Robyn resumed family therapy with Danajah
in March 2014 with Chaney.
Chaney testified that she had six sessions with Robyn
and Danajah; Robyn canceled three other sessions. During
the first session, Danajah got upset and ran out of the room;
Robyn had to be prompted to go after Danajah. Also, at one
of the early sessions, Danajah had gotten “in a little bit of
trouble” during the session and said she was afraid to go
home because she was going to be “in big trouble.” Robyn
reported to Chaney that she yells at Danajah a lot, so they
are working on more positive discipline. Chaney testified
that Robyn has implemented at least a little bit of positive
praise each session. Chaney testified that they are working
on family connectedness; she usually gives a goal 6 months
before reassessing.
In its order filed on July 30, 2014, the court overruled the
motion to show cause. However, the court sustained Robyn’s
motion to change placement and ordered that Danajah be
placed in Robyn’s home. The court also ordered that Darneil’s
visitation was to be supervised and to occur in a neutral loca-
tion. The court found “credible evidence” that Darneil told
Janaye to “‘whip [Robyn’s] ass’” and that Janaye did assault
Robyn, causing serious injuries to Robyn. The court found
that the assault occurred while children were present, causing
them “emotional trauma.” The court stated that Darneil and
Janaye were not credible in their recitation of the facts and
changed their version of the assault multiple times. The court
also stated:
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It also continues to be of great concern to the Court that
[Darneil] was convicted of First Degree Sexual Assault
of a Child [sic], that the child victim was [Robyn], and
that Danajah . . . was conceived as a result of the sexual
assault. In spite of this [Darneil] reports that conviction
as “consensual sex with a minor[.]”
Darneil appeals.
ASSIGNMENTS OF ERROR
Darneil assigns that the juvenile court erred (1) in granting
Robyn’s motion to change placement and finding that it is in
Danajah’s best interests to change placement, (2) in removing
Danajah from Darneil’s home and ordering that Darneil have
only supervised visitation in a neutral location, (3) in finding
there was credible evidence that Darneil told Janaye to “‘whip
[Robyn’s] ass’” or that the fight caused Danajah emotional
trauma, and (4) because its order changing Danajah’s place-
ment and ordering supervised visitation was contrary to the
evidence and minimum due process standards were not met.
STANDARD OF REVIEW
[1] Juvenile cases are reviewed de novo on the record,
and an appellate court is required to reach a conclusion inde-
pendent 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 wit-
nesses and accepted one version of the facts over the other.
In re Interest of Joseph S. et al., 288 Neb. 463, 849 N.W.2d
468 (2014).
ANALYSIS
[2] At the outset of our review, we must address an issue of
plain error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result
in damage to the integrity, reputation, or fairness of the judicial
process. In re Interest of Justine J. & Sylissa J., 288 Neb. 607,
849 N.W.2d 509 (2014).
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[3] In its order, the juvenile court stated that it “continues to
be of great concern to the Court that [Darneil] was convicted
of First Degree Sexual Assault of a Child [sic], that the child
victim was [Robyn], and that Danajah . . . was conceived as a
result of the sexual assault.” Although the juvenile court pro-
vided no statutory reference when making these statements, we
note that Neb. Rev. Stat. § 43-2933(2) (Reissue 2008) states
that “[n]o person shall be granted custody, parenting time,
visitation, or other access with a child if the person has been
convicted under section 28-319 and the child was conceived as
a result of that violation.” Neb. Rev. Stat. § 28-319 (Reissue
2008) is the statute for first degree sexual assault. Neither
the court nor the parties raised § 43-2933(2) anywhere in the
record before us or in briefing. (The State did not submit a
brief on appeal.)
[4] However, the record before us does suggest that
Darneil pled guilty to first degree sexual assault pursuant to
§ 28-319(1)(c) (the actor is 19 years of age or older and the
victim is at least 12 years of age but less than 16 years of
age), that Robyn was the victim of that sexual assault, and that
Danajah was conceived as a result of the violation. The record
also reflects that Darneil was required to register as a sex
offender under the Sex Offender Registration Act (SORA). See
Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008 & Cum.
Supp. 2014). Section 43-2933(2) does not provide for any
exception to or discretion in its mandatory language, whereas
§ 43-2933(1)(a) and (b) provide discretion to the court to con-
sider whether a registered sex offender is a significant risk to
the child. We set forth § 43-2933 in its entirety:
(1)(a) No person shall be granted custody of, or unsu-
pervised parenting time, visitation, or other access with,
a child if the person is required to be registered as a sex
offender under [SORA] for an offense that would make it
contrary to the best interests of the child for such access
or for an offense in which the victim was a minor or
if the person has been convicted under section 28-311,
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28-319.01, 28-320, 28-320.01, or 28-320.02, unless the
court finds that there is no significant risk to the child and
states its reasons in writing or on the record.
(b) No person shall be granted custody of, or unsu-
pervised parenting time, visitation, or other access with,
a child if anyone residing in the person’s household is
required to register as a sex offender under [SORA] as
a result of a felony conviction in which the victim was
a minor or for an offense that would make it contrary to
the best interests of the child for such access unless the
court finds that there is no significant risk to the child and
states its reasons in writing or on the record.
(c) The fact that a child is permitted unsupervised con-
tact with a person who is required, as a result of a felony
conviction in which the victim was a minor, to be regis-
tered as a sex offender under [SORA] shall be prima facie
evidence that the child is at significant risk. When mak-
ing a determination regarding significant risk to the child,
the prima facie evidence shall constitute a presumption
affecting the burden of producing evidence. However, this
presumption shall not apply if there are factors mitigat-
ing against its application, including whether the other
party seeking custody, parenting time, visitation, or other
access is also required, as the result of a felony convic-
tion in which the victim was a minor, to register as a sex
offender under [SORA].
(2) No person shall be granted custody, parenting time,
visitation, or other access with a child if the person has
been convicted under section 28-319 and the child was
conceived as a result of that violation.
(3) A change in circumstances relating to subsection
(1) or (2) of this section is sufficient grounds for modifi-
cation of a previous order.
(Emphasis supplied.) Based upon the record before us, spe-
cifically the information and sentencing order, it appears
Darneil was convicted under § 28-319(1)(c), first degree
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sexual assault (sexual penetration) when the actor is 19 years
of age or older and the victim is at least 12 years of age but
less than 16 years of age. First degree sexual assault under
this statute is a Class II felony, which provides for a mini-
mum prison sentence of 1 year and a maximum of 50 years.
A conviction pursuant to § 28-319(1)(c) is not listed as an
offense under § 43-2933(1)(a), which would allow a court dis-
cretion in determining access to a child. Therefore, pursuant
to § 43-2933(2), a conviction under § 28-319 operates as an
absolute bar to Darneil’s access to Danajah.
In contrast, we note that Neb. Rev. Stat. § 28-319.01 (Cum.
Supp. 2014) (first degree sexual assault of a child) is an
offense listed under § 43-2933(1)(a) and that a conviction
under § 28-319.01 gives a court discretion in allowing access
to a child. Section 28-319.01 is similar to § 28-319(1)(c) in
that it also requires sexual penetration, but § 28-319.01 applies
when (1) the actor is 19 years of age or older and the victim
is under 12 years of age or (2) the actor is 25 years of age or
older and the victim is at least 12 years of age but less than
16 years of age. First degree sexual assault of a child is clas-
sified as a more serious Class IB felony, with a mandatory
minimum sentence of 15 years in prison for the first offense.
§ 28-319.01(2). A Class IB felony has a maximum sentence
of life imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp.
2014). So although a conviction under § 28-319.01 has been
determined by the Legislature to be a more serious Class IB
felony offense, the Legislature nevertheless gives discretion to
the courts to determine the appropriateness of parental access
to a child who may have been conceived as a result of such
an offense. With a mandatory minimum sentence of 15 years,
clearly contact with the child would be limited but, neverthe-
less, permitted.
On the other hand, since our record suggests that Darneil
was convicted under § 28-319(1)(c), pursuant to the nondiscre-
tionary language of § 43-2933(2), Darneil is prohibited from
having any custody of, parenting time or visitation with, or
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other access to Danajah whatsoever. While we note this some-
what inconsistent treatment of a conviction under § 28-319
versus § 28-319.01 with regard to access to a child, not to
mention the severe outcome of absolute denial of Darneil’s
access to Danajah after having been involved in her parent-
ing for almost 2 years, those differences and outcomes are
legislative matters and are not issues before us in this appeal.
For purposes of our review, we consider only whether the
Parenting Act, specifically § 43-2933(2), applies to actions
brought under the Nebraska Juvenile Code and, if so, whether
due process requires a remand for further proceedings before
Darneil’s access to Danajah can be absolutely barred.
Does Parenting Act Apply to
Nebraska Juvenile Code?
[5,6] Section 43-2933(2) falls under the Parenting Act, Neb.
Rev. Stat. § 43-2920 et seq. (Reissue 2008 & Cum. Supp.
2014), and not under the Nebraska Juvenile Code, Neb. Rev.
Stat. § 43-245 et seq. (Reissue 2008 & Cum. Supp. 2014), pur-
suant to which the present proceeding was brought. Therefore,
in considering whether § 43-2933 applies to this case, we start
with § 43-2924, which states:
(1) The Parenting Act shall apply to proceedings or
modifications filed on or after January 1, 2008, in which
parenting functions for a child are at issue (a) under
Chapter 42, including, but not limited to, proceedings or
modification of orders for dissolution of marriage and
child custody and (b) under sections 43-1401 to 43-1418.
The Parenting Act may apply to proceedings or modifica-
tions in which parenting functions for a child are at issue
under Chapter 30 or 43.
(2) The Parenting Act does not apply in any action
filed by a county attorney or authorized attorney pursu-
ant to his or her duties under section 42-358, 43-512
to 43-512.18, or 43-1401 to 43-1418, the Income
Withholding for Child Support Act, the Revised Uniform
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Reciprocal Enforcement of Support Act before January 1,
1994, or the Uniform Interstate Family Support Act for
purposes of the establishment of paternity and the estab-
lishment and enforcement of child and medical support.
A county attorney or authorized attorney shall not partici-
pate in the development of or court review of a parenting
plan under the Parenting Act. If both parents are parties
to a paternity or support action filed by a county attorney
or authorized attorney, the parents may proceed with a
parenting plan.
As stated above, application of the Parenting Act is manda-
tory when parenting functions are at issue under chapter 42
(husband and wife), but it “may apply” to proceedings when
parenting functions are at issue under chapter 30 (decedents’
estates; protection of persons and property) and chapter 43
(infants and juveniles). § 43-2924(1). There are specific mat-
ters excluded from the Parenting Act when brought by a county
attorney as set forth in § 43-2924(2); however, notably, there
is no exclusion for matters brought pursuant to the Nebraska
Juvenile Code. Our Supreme Court has held that even when
an action was brought by the State to establish paternity and
child support pursuant to Neb. Rev. Stat. §§ 43-1401 through
43-1408 (Reissue 2008), which action would be excluded from
the Parenting Act under § 43-2924(2), the Parenting Act can
nevertheless apply if certain conditions are met. See State ex
rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565
(2010) (when both parents become parties to action and pro-
ceedings become those in which custody and parenting func-
tions are at issue, Parenting Act applies). We also note that
Neb. Rev. Stat. § 43-1411.01(2) (Cum. Supp. 2014) (paternity
action) states that “[w]henever termination of parental rights
is placed in issue in any case arising under sections 43-1401
to 43-1418, the Nebraska Juvenile Code and the Parenting Act
shall apply to such proceedings.”
In matters pertaining to parenting and children, it cer-
tainly makes sense that issues addressed within the Nebraska
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Juvenile Code, Parenting Act, and paternity, guardianship, and
divorce statutes will have relevant applications between them
and, in some instances, contain specific references to and rely
upon language from other statutory sections. For example,
in In re Interest of Cassandra B. & Moira B., 290 Neb. 619,
628, 861 N.W.2d 398, 405 (2015), our Supreme Court noted
that “[u]nder the Nebraska Juvenile Code, ‘[l]egal custody’
has the same meaning as under the Parenting Act,” citing to
§§ 43-245(13) and 43-2922(13). That would be true regard-
ing physical custody as well. See §§ 43-245(20) (“[p]hysical
custody has the same meaning as in section 43-2922”) and
43-2922(21) (defines physical custody). We also observe that
there is substantial interplay between statutes contained in
chapters 42 (husband and wife) and 43 (infants and juveniles)
when considering the best interests of a child. For example,
Neb. Rev. Stat. § 42-364(5) (Cum. Supp. 2014) provides that
whenever termination of parental rights is placed in issue, a
trial court shall transfer jurisdiction to a juvenile court estab-
lished pursuant to the Nebraska Juvenile Code unless a show-
ing is made that a county or district court is a more appropri-
ate forum. Furthermore, in considering the best interests of a
child under a termination of parental rights for abandonment
under the Nebraska Juvenile Code pursuant to Neb. Rev. Stat.
§ 43-292(1) (Cum. Supp. 2014), our Supreme Court looked to
the definition of best interests as set forth in the Parenting Act
at § 43-2923. See Kenneth C. v. Lacie H., 286 Neb. 799, 839
N.W.2d 305 (2013).
Given the apparent relevant applications between the
Nebraska Juvenile Code and the Parenting Act when address-
ing the custody and best interests of a child, and further, since
the Nebraska Juvenile Code is not specifically excluded from
the Parenting Act, § 43-2924(1) tells us that if parenting func-
tions are at issue, the Parenting Act “may” apply.
There is no question that parenting functions are at issue
in this case. “Parenting functions means those aspects of the
relationship in which a parent or person in the parenting role
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makes fundamental decisions and performs fundamental func-
tions necessary for the care and development of a child.”
§ 43-2922(18). Such functions include, among other things,
maintaining a safe, stable, consistent, and nurturing relation-
ship with the child; feeding and clothing the child; attending
to the child’s health and medical needs and emotional stabil-
ity; and attending to adequate education for the child. Id.
The matter before us clearly involves parenting functions;
accordingly, the Parenting Act and, specifically in this case,
§ 43-2933(2) “may” apply. Since “may” is not mandatory, we
next consider whether the Parenting Act was intended to apply
to circumstances such as those presented to us in this juvenile
court proceeding.
Statutory language is to be given its plain and ordinary
meaning; an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. State v. Hall, 269 Neb. 228, 691
N.W.2d 518 (2005). The word “may” when used in a statute
will be given its ordinary, permissive, and discretionary mean-
ing unless it would manifestly defeat the statutory objective.
Id. In construing a statute, appellate courts are guided by the
presumption that the Legislature intended a sensible rather
than absurd result in enacting the statute. State v. Norman,
282 Neb. 990, 808 N.W.2d 48 (2012). Also, a court must
look to the statutory objective to be accomplished, the evils
and mischiefs sought to be remedied, and the purpose to be
served, and then must place on that statute a reasonable or
liberal construction that best achieves the statute’s purpose,
rather than a construction that defeats the statutory purpose.
Id. It is the duty of a court to give a statute an interpretation
that meets constitutional requirements if it can reasonably be
done. Id. Accordingly, in considering whether § 43-2933(2) of
the Parenting Act should be applied to proceedings under the
Nebraska Juvenile Code, we look to the legislative findings
related to the Parenting Act as set forth at § 43-2921, which
states, in relevant part:
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The Legislature . . . finds that it is in the best interests
of a child to have a safe, stable, and nurturing environ-
ment. The best interests of each child shall be paramount
and consideration shall be given to the desires and wishes
of the child if of an age of comprehension regardless
of chronological age, when such desires and wishes are
based on sound reasoning.
In any proceeding involving a child, the best interests
of the child shall be the standard by which the court
adjudicates and establishes the individual responsibilities,
including consideration in any custody, parenting time,
visitation, or other access determinations as well as reso-
lution of conflicts affecting each child. The state pre-
sumes the critical importance of the parent-child relation-
ship in the welfare and development of the child and that
the relationship between the child and each parent should
be equally considered unless it is contrary to the best
interests of the child.
Given the potential profound effects on children from
witnessing child abuse or neglect or domestic intimate
partner abuse, as well as being directly abused, the
courts shall recognize the duty and responsibility to
keep the child or children safe when presented with a
preponderance of the evidence of child abuse or neglect
or domestic intimate partner abuse, including evidence
of a child being used by an abuser to establish or main-
tain power and control over the victim. In domestic
intimate partner abuse cases, the best interests of each
child are often served by keeping the child and the vic-
timized partner safe and not allowing the abuser to con-
tinue the abuse. When child abuse or neglect, domestic
intimate partner abuse, or unresolved parental conflict
prevents the best interests of the child from being
served in the parenting arrangement, then the safety and
welfare of the child is paramount in the resolution of
those conflicts.
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From these legislative findings, it is apparent that the best
interests of a child are paramount under the Parenting Act.
It is also evident that the Parenting Act considers domes-
tic intimate partner abuse (which includes sexual assault)
and unresolved parental conflict to be significant factors in
considering a child’s best interests. The significant common
denominator shared by the Parenting Act and the Nebraska
Juvenile Code is consideration of a child’s best interests.
And the only way to read § 43-2933(2) is that the Legislature
has determined that it is in a child’s best interests, when the
child was born as a result of “statutory rape” (or other first
degree sexual assault situations), to have absolutely no con-
tact with the parent (male or female) who perpetrated and
was convicted of such an act. This is so regardless of (1) any
alleged consensual nature of the act, (2) consent to parenting
time with the child by the victim or victim’s parent or guard-
ian, or (3) a court’s determination that parental contact may
be desirable and appropriate. Presumably, a woman could be
convicted of statutory rape under § 28-319(1)(c) for a sexual
act involving an underage male victim and, if that sexual act
results in the conception and birth of a child, have no right
to any access whatsoever to that child. Section 43-2933(2)
states, “No person shall be granted custody, parenting time,
visitation, or other access with a child if the person has been
convicted under section 28-319 and the child was conceived
as a result of that violation.” Although it is questionable
whether § 43-2933(2) promotes a child’s best interests by
such a strict prohibition against parental access no matter
the circumstances, we cannot say that it has no applica-
tion in the Nebraska Juvenile Code and therefore this case.
It would not achieve the statute’s purpose if it were only
mandatorily applied in situations arising under chapter 42
(husband and wife) and not in situations like the one before
us. Accordingly, we conclude § 43-2933(2) applies to cases
under the Nebraska Juvenile Code when parenting functions
are at issue.
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Deprivation of Liberty Interest
Requires Due Process.
[7,8] In light of our determination that § 43-2933(2) applies
to the juvenile court proceeding before us, we now con-
sider whether the record is sufficient for this court to impose
the absolute prohibition against Darneil’s parental access to
Danajah in accordance with that statute. We conclude that
our record is not sufficient and that due process requires that
Darneil have an opportunity to be heard and present evidence
before his access to Danajah can be terminated. It is well
established that parental rights constitute a liberty interest, and
a parent’s interest in the accuracy and justice of the decision
to terminate his or her parental rights is a commanding one.
Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).
Due process requires that parties at risk of deprivation of lib-
erty interests be provided adequate notice and an opportunity
to be heard appropriate to the nature of the proceeding and the
character of the rights which may be affected by it. State v.
Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
In State v. Norman, supra, our Supreme Court noted that
registration under SORA implicates a liberty interest and that
procedures pertaining to SORA must comply with constitu-
tional mandates for procedural due process. Before a defendant
can be ordered to be subject to SORA, a court must make a
finding, based upon clear and convincing evidence, whether
the defendant committed an act of sexual penetration or sexual
contact. State v. Norman, supra. Since a liberty interest is
implicated in the making of this finding, the court must provide
procedural due process when it makes this finding after provid-
ing the defendant proper notice and a meaningful opportunity
to be heard. See id.
In Norman, the defendant pled no contest to third degree
assault and was sentenced to 2 years’ probation and 30
days in jail. (The defendant had initially been charged with
third degree sexual assault of a child.) The district court
also ordered the defendant to register under SORA. SORA
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provided that for offenses not sexual in nature, including third
degree assault, the court shall have found evidence of sexual
penetration or sexual contact. At the sentencing hearing, the
district court discussed the recent amendment to SORA that a
person convicted of an offense that is not a sex offense may
still have to register pursuant to SORA. The district court
considered the factual basis used for the conviction and deter-
mined the defendant had to register pursuant to SORA. The
defendant appealed that portion of his sentence ordering him
to register under SORA, on the basis that he was denied due
process. The defendant claimed he was denied procedural due
process in connection with the order to register under SORA.
Our Supreme Court found merit to that argument, because
although the defendant had a sentencing hearing, the court did
not consider evidence adduced at the hearing and instead made
its determination based upon the statements contained in the
State’s factual basis for the plea. Our Supreme Court reversed
the SORA reporting portion of the defendant’s sentence and
remanded the matter to the district court to make a specific
finding, based on all the evidence in the record, including
evidence from the hearing, to determine whether the defendant
was subject to SORA.
Similar to our Supreme Court in Norman, supra, wherein
the court remanded for a specific finding as to whether the
defendant was subject to SORA after notice and hearing, we
do the same here. Because neither the juvenile court nor the
parties specifically raised the application of § 43-2933(2) to
the proceedings below, and because a liberty interest is at
issue, Darneil must be afforded proper notice and a meaningful
opportunity to be heard before his contact with Danajah can be
terminated pursuant to § 43-2933(2).
The juvenile court did not make a specific factual finding
as to the application of § 43-2933(2) to the proceedings before
it. Although the judge noted it “continues to be of great con-
cern” that Darneil was convicted of first degree sexual assault,
that the victim was Robyn, and that Danajah was conceived
as a result, and was troubled by Darneil’s report that it was
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consensual sex with a minor, this was not a factual finding
made upon the presentation of any specific evidence, at least
not upon evidence presented at this particular hearing, which is
the subject of the present appeal.
Our record reveals that this matter originated on July 18,
2007, when the State filed a petition alleging Danajah was
a child within the meaning of § 43-247(3)(a) (Cum. Supp.
2006), with all allegations relating to Robyn, but that Darneil
did not file to intervene until December 8, 2009. In an order
filed on January 14, 2010, the court granted Darneil’s com-
plaint to intervene. We cannot tell from the record before us
whether any objection was made to Darneil’s intervention, nor
whether any hearing took place during which the propriety of
Darneil’s access to Danajah was considered. On February 16,
2012, Darneil filed a motion for placement of Danajah, which
was granted on March 9 over the objection of Robyn and the
guardian ad litem. Our record is likewise devoid of any hearing
pertaining to this change of placement.
Therefore, because the application of § 43-2933(2) was not
specifically addressed by the juvenile court and the parties
were not provided an opportunity to be heard on this issue,
we remand the matter back to the juvenile court for further
proceedings.
Because we remand the matter back to the juvenile court
for an evidentiary hearing and specific findings regarding
§ 43-2933(2) and Darneil’s parental rights of access to Danajah,
we need not address Darneil’s actual assignments of error. An
appellate court is not obligated to engage in an analysis which
is not needed to adjudicate the controversy before it. In re
Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).
CONCLUSION
For the reasons stated above, we remand the matter back to
the juvenile court for an evidentiary hearing and specific find-
ings regarding § 43-2933(2) and Darneil’s parental rights of
access to Danajah.
R emanded with directions.