concurring in part, and in part dissenting.
I dissent with reference to the termination of Tonya’s parental rights. Even though the record suggests that the mother, Tonya, may (1) have repeatedly neglected and refused to give her children necessary parental care and protection, Neb. Rev. Stat. § 43-292(2) (Reissue 1998); (2) have failed to complete the psychological and court-ordered chemical dependency evaluations and failed to correct the conditions leading to the § 43-247(3)(a) determination, § 43-292(6); and (3) be unfit as a parent by reason of habitual use of intoxicating liquor or narcotic drugs, § 43-292(4), the State did not pursue termination of the mother’s parental rights under any of these grounds. Instead, the sole *175ground for termination of the mother’s parental rights, as set forth in the October 13,1998, “Supplemental Petition,” was that Tonya abandoned her children “for six months or more immediately prior to the filing” of the supplemental petition. See § 43-292(1).
Thus, the State set out to prove that the mother abandoned her children for a period of 6 months or more immediately prior to October 13,1998. The most obvious problem with the State’s theory is that on August 27,1998, the mother was granted “no rights of visitation with [her] children pending further order” of the juvenile court. No further rights of visitation were granted to the mother by the juvenile court between August 27 and October 13.
For the purposes of § 43-292(1), “abandonment” is a parent’s intentionally withholding from a child, without just cause or excuse, the parent’s presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999). We are starting down a dangerous and slippery slope if we countenance the practice of the State seeking a “no contact” or “no visitation” order from the juvenile court and then later claiming that the parent intentionally withheld from his or her child the parent’s presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child during the time that the order is in effect.
It is fundamentally unfair, and a violation of the parent’s due process rights, to allow the termination of one’s parental rights on the sole basis of abandonment when utilizing portions of time that a parent has been court ordered to have no contact or “no visitation” with his or her children. I agree with the majority that from March 20 until August 27,1998, Tonya had no contact of any kind with her children. I also acknowledge that from August 27 until October 13, 1998, Tonya’s only contact with her children was the delivery of one birthday card to the Department on September 3. In light of the “no visitation” order, however, I am not willing to say that from August 27 until October 13, this mother had a fair opportunity to display her presence, care, love, protection, and parental affection for her children. See In re Interest of Sunshine A. et al., supra. Therefore, I disagree with *176the majority’s conclusion that the State proved by clear and convincing evidence that Tonya abandoned her children for 6 months or more immediately prior to the filing of the supplemental petition in this case.
That is not to say the record demonstrates that Tonya is a fit parent or, as noted in my first paragraph, that the continuation of Tonya’s parental rights is in the best interests of her children. Nor am I suggesting that it is in any way improper for a juvenile court to utilize a “no visitation” order when the best interests of the children are served by such an order. What I am asserting is that it is fundamentally unfair under the Due Process Clause of both the federal and the state Constitutions to allow the machinery of the State to impede visitation between a parent and child and then to allow the termination of parental rights on the sole basis of abandonment, utilizing evidence from the period of time that the parent was court ordered to have “no visitation” with his or her children.
Therefore, I would reverse the January 6, 1999, order of the juvenile court which terminated the parental rights of Tonya on the sole basis of abandonment and remand this cause for further proceedings. It should be noted that I concur in that portion of the majority’s judgment dismissing Michael’s appeal in case No. S-99-351.
Hendry, C.J., and Stephan, J., join in this concurrence and dissent.