IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF LONDYN H.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF LONDYN H., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
MARIO O., APPELLANT.
Filed September 12, 2023. No. A-23-150.
Appeal from the County Court for Saunders County: ANDREW R. LANGE, Judge. Affirmed.
Mark A. Steele, of Steele Law Office, for appellant.
Jennifer D. Joakim, Saunders County Attorney, for appellee.
Catrina K. Harris, of Lutton Law Office, L.L.C., guardian ad litem.
PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.
MOORE, Judge.
INTRODUCTION
Mario O. appeals from the order of Saunders County Court, sitting as a juvenile court,
which adjudicated his minor child, Londyn H., under Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016). He argues that the juvenile court erred in its determination that he had failed to provide
proper parental care and abandoned the child. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
Mario is the biological father of Londyn, born in July 2014. Londyn was removed from the
care of her biological mother in April 2019 due to concerns regarding the mother’s drug use.
Though an original petition relating to the mother is not included in our record on appeal, the
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Nebraska Department of Health and Human Services’ (the Department’s) case plan dated March
23, 2022, states that Londyn was made a ward of the state shortly after her removal, and Londyn
was adjudicated on August 5, 2019. Londyn’s mother is not involved in this appeal and will be
discussed only as necessary to its resolution.
On January 10, 2023, the State filed a supplemental petition in the juvenile court, alleging
that Londyn was within the meaning of § 43-247(3)(a). Specifically, the State alleged that Londyn
lacked proper parental care due to Mario’s fault or habits and was at risk for harm because Mario
was unable or unwilling to be involved in the child’s daily life and to be a constant, full-time
parent, and failed to “sufficient discharge” his duty to exhibit a continued interest in the child,
including financial and emotional support, and parental affiliation with the child, thereby
abandoning the child within the meaning of § 43-247 (3)(a). Mario entered a denial to the
allegation of the petition, and an adjudication hearing was held on January 25, 2023. The following
evidence was adduced.
Mario testified that he and Londyn’s mother coparented Londyn in Nebraska from her birth
in 2014 until 2016. In 2016, Mario and Londyn moved to Florida where they resided for 1 year
until Mario moved to Trinidad to attend a master’s program and Londyn returned to Nebraska to
live with her mother. After Mario completed his master’s program, he moved back to Nebraska
and resumed coparenting Londyn.
A certified child support payment history was entered into evidence, reflecting that Mario
paid a monthly obligation of $154 beginning in September 2015. Mario’s child support payments
were suspended in May 2017 because Londyn was residing with Mario in Florida at that time.
Mario had no payments in arrears and no subsequent child support order has been made.
On December 21, 2018, Londyn’s mother obtained an ex parte domestic abuse protection
order in the district court of Saunders County against Mario on behalf of Londyn. In the
accompanying affidavit, Londyn’s mother stated that Mario had yelled at Londyn to brush her
teeth, drug Londyn by her arm about 10 feet, and “smacked” Londyn’s buttocks and thighs. The
ex parte order awarded temporary custody of Londyn to her mother and excluded Mario from the
mother’s residence, but did not prohibit Mario from contacting or communicating with Londyn.
Mario requested a hearing on the protection order, but the request was denied by the district court
because it was untimely made.
In September 2019, Londyn’s mother filed a motion to vacate and set aside the domestic
abuse protection order, stating in her motion that Londyn’s father was no longer a danger to her.
During a hearing on the mother’s motion to vacate, the mother withdrew her motion and the
protection order remained in effect until December 2019.
The Department’s March 2022 case plan also stated that because Mario had hit Londyn, he
was arrested on December 21, 2018, and “[t]here was also a no contact order in place through
Saunders County.” However, the criminal case against Mario and the no contact order were
dropped in September 2019.
In April 2019, Londyn was removed from her mother’s care and Mario did not receive
legal notice of the removal. Mario moved to Florida in late 2019. Since the juvenile case began,
Londyn has never been placed with Mario. There is little information included in our record
regarding Mario’s involvement in the juvenile case from the time of Londyn’s removal in April
2019 until the spring of 2022, when the Department first created a case plan for Mario.
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Though our record does not contain a transcript from any hearing prior to the filing of the
supplemental petition, Mario concedes that the juvenile court adopted the Department’s March 23,
2022, and October 4 case plans. Mario’s original goals, included in the March 2022 case plan,
were to maintain consistent contact with Londyn through virtual visitation and phone calls and to
complete an Interstate Compact on the Placement of Children (ICPC) home study to explore
Londyn’s placement with Mario.
Deidre Shafer, the family’s caseworker since April 2021, facilitated Mario’s virtual
visitation beginning in March 2022. The Department offered at least 2 hours per week of virtual
visitation supervised by a family support worker, and Mario was also allowed to call Londyn at
her placement at any time. When Mario was participating in virtual visitation, he would
occasionally not answer the video call. The October 2022, case plan notes that of the 11 supervised
visits offered to Mario between March and May, he attended eight. When visits did occur, Londyn
was engaged, and the visits went well.
Lora, Londyn’s maternal grandmother, has had placement of Londyn since December
2021. When video visitation did not occur, Londyn would become upset and withdrawn and ask
Lora why Mario and his family did not want to speak with her. Lora began not telling Londyn
about virtual visits to avoid Londyn becoming upset if the visits did not happen as scheduled.
Tracy Strong was the family support worker who supervised Londyn and Mario’s virtual
visits. Text messages exchanged between Strong and Mario from April to June 2022 and
November to December were entered into evidence. On May 10, Mario did not attend a visit and
informed Strong the following day that he was ill and the visit “slipped [his] mind.” That same
day, May 11, Strong offered a visit later in the week where Mario would be able to watch Londyn’s
T-ball practice. Mario did not respond despite Strong sending follow up text messages on May 12
and 13. Mario and Strong resumed communicating about visits from June 10 to 13, and a virtual
visit was scheduled for the evening of June 13 but ultimately it did not occur. Strong sent messages
on June 14, 15, and 21, asking if Mario wanted a visit without receiving any response from Mario.
The next text message from Strong to Mario was sent on November 4, 2022. Strong
testified that the gap in text messages from late June until early November likely reflects the
expiration of the previous referral for supervised virtual visits and the Department creating a new
referral. Strong and Mario exchanged messages from November 4 to December 8, but no visits
were scheduled. Instead, Mario communicated his frustrations regarding the juvenile case to
Strong.
On November 6, 2022, Mario sent a text message to Strong stating, “[i]t’s my job as a
parent not to let anyone unlawfully take my child and then submit to demands just to reunify with
my child.” Strong responded that she would want to visit with her child as often as possible and
observed that the situation was most unfortunate for Londyn, and Mario did not reply. In another
text message, on November 14, Mario told Strong that he has “custodial rights to my biological
child that are being completely ignored . . . please stop trying to coheres [sic] me [into attending
visits].” After Strong sent Mario three text messages offering virtual visitation on November 23,
December 1, and December 8, Mario messaged Strong on December 8, “this is harassment.”
Strong testified that the Department’s most recent referral instructs family support to
continue reaching out to Mario weekly until the end of March 2023. Strong has not received a
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response since November 2022. Strong has not supervised a virtual visit between Londyn and
Mario since the spring of 2022.
Lora testified to communications Mario had with Londyn outside of virtual visits through
the Department. Lora recalled a phone call Mario made to Londyn in the summer of 2022, the day
after her birthday, as well as three text message exchanges between Mario and Londyn in August,
November, and December. Screenshots of the text messages were entered into evidence. In the
text messages, Mario discusses Londyn moving to Florida, statements made in court, and how
Mario was going to “win” the juvenile case. Mario also placed eight video calls to Londyn in July
and August, though it is unclear from our record whether these calls were answered and how long
they lasted. Shafer was concerned about Mario having inappropriate conversations with Londyn,
specifically talking with Londyn about moving to Florida when her change of placement had not
yet been approved by the Department or juvenile court.
The March 2022 case plan reflects Mario’s resistance to participating in a prior ICPC. The
case plan states that in March 2020, an ICPC request was sent to Florida and Mario refused to
participate because he did not need to prove his home was safe for Londyn as there were no
allegations against him in the juvenile case at that time. Due to Mario’s lack of cooperation, this
prior ICPC was denied by the state of Florida. The second ICPC was completed by Florida social
services in August 2022.
Shafer testified that Londyn is currently seeing a therapist due to trauma caused by
witnessing domestic violence in the home and her removal, and has been diagnosed with
generalized anxiety disorder. Londyn’s therapist recommended that Mario attend 10 sessions of
individual therapy and then participate in family therapy with Londyn to help manage Londyn’s
anxiety. The family therapy recommendation was also made to help Mario understand how his
inconsistency affects Londyn. The October 2022 case plan details a report from Londyn’s therapist
in which she states that Londyn “is increasingly hurt by the lack of parental involvement followed
by promises to reconnect with either parent.” Londyn also had been exhibiting negative behaviors
and making suicidal statements in school. The therapist attributed this to Londyn’s “constant
frustration of attempting to regulate her parents.”
In the October 2022 case plan, Shafer included a third goal for Mario; to enhance Mario’s
parenting skills by attending supervised visitation, and participating in virtual family support
services, a parenting class, individual therapy, and a parenting assessment. Shafer added the items
to the case plan after speaking with Londyn’s therapist and guardian ad litem and developing a
transition plan to prepare Mario for possible placement of Londyn. Shafer believed this transition
plan was in Londyn’s best interests. As of trial, Mario had not participated in family support or a
parenting class, despite referrals being made for the services. Shafer asked Mario for an update on
individual therapy and the parenting assessment and did not receive a response.
Shafer described Mario’s contact with Londyn as minimal. Mario told Shafer that the
reason he was not participating in supervised visitation or family support services was because the
ICPC had been approved and he did not feel he needed to participate in any further services. Mario
also testified that due to the approval of his ICPC application, he had moved the juvenile court to
dismiss the matter or transfer jurisdiction to Florida. This motion does not appear in our record on
appeal. Mario testified that he would be able to provide a safe and secure home for Londyn and
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that having placement of Londyn would be in the child’s best interests. Mario stated that he has
been prohibited from having contact with Londyn due to the pending juvenile case.
Mario acknowledged that even with the suspension of the previous child support order, he
should still financially support Londyn. However, Mario stated that he was told by the Department
to stop sending Londyn money directly. Mario has purchased clothing and gifts for Londyn but
has kept the items in his home rather than send the items to her. Lora testified that she had received
no gifts for Londyn on behalf of Mario and Shafer was not aware of Mario giving gifts or providing
any financial support to Londyn’s care.
Lora testified that since December 2021, Mario has not had an in person visit with Londyn
despite being in Lincoln, Nebraska, a few weeks prior to attend the hearing on the supplemental
petition. Mario testified that though he had considered reaching out to Londyn when he was in
Nebraska, he did not, because of his flight arrangements and the amount of travel time from
Lincoln to Wahoo, Nebraska, compared to the short amount of time he would be in the state.
Additionally, Mario does not trust the Department because he has “watched things happen that’s
not reported,” and so was skeptical about the Department supervising his in person visit with
Londyn. Mario did not contact Lora or Londyn while he was in Nebraska.
Shafer concluded that Mario was unable or unwilling to participate in the case plan and
that the Department could not recommend reunifying Mario with Londyn due to his lack of case
participation. Based on Shafer’s interactions with Mario since she became the family’s
caseworker, she did not believe that Mario’s level of participation in the case would change.
Mario testified that he has told the Department that they “had no legal reason to be able to
tell me to do anything . . .” Mario also described himself as actively involved with the juvenile
case. Mario stated that only his skepticism toward the Department was preventing him from
contacting Londyn daily. When asked if he had been acting like a full-time parent, Mario
responded that he had been “prohibited from being a full-time parent.”
In an order filed on January 26, 2023, the juvenile court found the allegation of the
supplemental petition to be true and determined, by a preponderance of the evidence, that Londyn
and Mario came within the meaning of § 43-247(3)(a) and under the jurisdiction of the court.
Mario appeals.
ASSIGNMENT OF ERROR
Mario assigns that the juvenile court erred in finding that he had failed to provide parental
support and affiliation for Londyn, and thereby conferring jurisdiction over Mario and Londyn.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. When the evidence is in conflict, however, an
appellate court may give weight to the fact that the juvenile court observed the witnesses and
accepted one version of facts over another. In re Interest of Mateo L. et al., 309 Neb. 565, 961
N.W.2d 516 (2021).
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ANALYSIS
Mario asserts that the juvenile court erred in finding that he had abandoned Londyn within
the meaning of § 43-247(3)(a). Mario also contends that the juvenile court erred by conferring its
jurisdiction over him and Londyn. As a part of this assigned error, Mario contends that he was the
nonoffending parent in connection with the original adjudication of Londyn in her mother’s case.
To obtain jurisdiction over a juvenile and the juvenile’s parents, the court’s only concern
is whether the condition in which the juvenile presently finds himself or herself fits within the
asserted subsection of § 43-247. In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).
The rights of parenthood, even of a fit parent, are not beyond limitation by the State’s powers and
duties as parens patriae. Id. The nonoffending parent’s exercise of the parental preference of
custody is not entirely unfettered during the juvenile court’s continuing jurisdiction under the
juvenile code. Id. The juvenile court, in the exercise of its parens patriae responsibilities, may
develop a transition plan constituting a reasonable intrusion of limited duration into the
nonoffending parent’s rights to autonomy in the care and custody of the child. Id.
Though Mario was the nonoffending parent at the time Londyn was adjudicated under the
original petition relating to her mother, the juvenile court properly ordered Mario to comply with
the transition plan created by the Department in tandem with Londyn’s therapist and guardian ad
litem. Mario was ordered to attend supervised virtual visitation and to participate in family support
services, a parenting class, individual therapy, and a parenting assessment. Mario largely failed to
participate in any of these services other than attending virtual visitation, which he attended from
March to May 2022.
Mario’s communications with Londyn have been inconsistent throughout 2022. Mario
attended eight of the 11 offered supervised virtual visits in the spring of 2022 but did not respond
to the family support worker’s repeated attempts to schedule virtual visits throughout the
remainder of the year. Mario’s text messages to the family support worker are hostile and
defensive, despite the worker’s suggestion that Londyn would be negatively affected by Mario’s
refusal to attend virtual visitation. Mario called Londyn through her placement once in the summer
of 2022. Mario also text messaged with Londyn directly in August, November, and December,
and placed eight video calls to her cell phone in July and August. Many of Mario’s text messages
to Londyn discussed the juvenile case.
Mario’s indifference to Londyn was particularly apparent when Mario did not see Londyn
in January 2023 when he traveled from Florida to Lincoln, Nebraska, to attend the hearing on the
supplemental petition. Mario testified that he did not arrange for an in person visit with Londyn
because he would not be in the state for very long and he would have had to travel from Lincoln
to Wahoo, which is a distance of less than 35 miles. Not only did Mario not visit Londyn at her
placement, but he did not make arrangements with Lora or Shafer to have Londyn brought to
Lincoln so that he could see Londyn after the hearing. Mario had not seen his daughter in person
since December 2021.
Section 43-247(3)(a) provides the juvenile court with jurisdiction over any juvenile “who
is abandoned by his or her parent, guardian, or custodian”; and “who lacks proper parental care by
reason of the fault or habits of his or her parent, guardian, or custodian.” While the State need not
prove that the child has actually suffered physical harm, Nebraska case law is clear that at a
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minimum, the State must establish that without intervention, there is a definite risk of future harm.
In re Interest of Draygon W. et al., 31 Neb. App. 400, 980 N.W.2d 648 (2022). The State must
prove such allegations by a preponderance of the evidence. Id.
In Nebraska, the rights of the parent and the child are protected by the separate adjudication
and dispositional phases of the dependency proceeding. In re Interest of Lilly S. & Vincent S., 298
Neb. 306, 903 N.W.2d 651 (2017). A petition brought under § 43-247(3)(a) is brought on behalf
of the child, not to punish the parents. The purpose of the adjudication phase of the proceeding is
to protect the interests of the child; the purpose of the dispositional phase is to determine placement
and the rights of the parties in the action. Id. It is not improper for the court to sustain jurisdiction
at the adjudication phase if the State establishes a lack of proper parental care in the child’s present
living situation. Id.
Here, the grounds alleged in the supplemental petition, which the juvenile court found were
proved by sufficient evidence, included that Londyn lacked proper parental care due to Mario’s
fault or habits as Mario was unable or unwilling to be involved in the child’s daily life and to be a
constant, full-time parent, and fails to “sufficient[ly] discharge” his duty to exhibit a continued
interest in the child; thereby abandoning Londyn and placing her at risk for harm. Mario argues
that his communication with Londyn and efforts to have her placed with him demonstrates his
intent to parent Londyn, and the State failed to show that his actions placed Londyn at risk of harm.
We disagree.
As we have discussed above, Mario has been inconsistent with his communication with
Londyn. This inconsistency has greatly impacted Londyn’s mental health. When Mario did not
attend virtual visitation, Londyn was saddened to the point that Lora stopped telling Londyn when
visitation was scheduled to occur in case the visits did not take place. Londyn’s therapist has
reported to the Department that Londyn is hurt by the lack of parental involvement in her life and
that Mario’s inconsistency has led to Londyn’s negative behaviors and making suicidal statements
at the age of 8. The recommendation by Londyn’s therapist that Mario participate in individual
therapy and later family therapy was made so that Mario would be equipped to support Londyn’s
generalized anxiety disorder. Not only has Mario been contributing to Londyn’s distress through
his lack of contact, but Mario also refused to participate in a service designed to ameliorate
Londyn’s mental health diagnoses. This places Londyn at risk of harm.
Finally, although the evidence shows that Mario has been a part of Londyn’s life in some
respect, he has not provided the consistent care and support of a parent. Throughout the case Mario
has blamed the Department and the juvenile court for not allowing him to act as a full-time parent
to Londyn. However, it is Mario who is not consistently communicating with his daughter or
participating in court-ordered services for her benefit. After a de novo review of the record, we
find that the evidence shows by a preponderance that Mario has abandoned Londyn for the purpose
of § 43–247(3)(a) in failing to provide Londyn with proper support and parental care and that the
juvenile court did not err in adjudicating Londyn under that statute.
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CONCLUSION
Upon our de novo review of the evidence, we find that the State proved the allegations in
the supplemental petition by a preponderance of the evidence. Accordingly, the juvenile court
properly took jurisdiction over Londyn and Mario.
AFFIRMED.
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