NEBRASKA ADVANCE SHEETS 984 277 NEBRASKA REPORTS There is nothing in Davlin’s motion (or indeed in the record) that would suggest the nature of the exculpatory evidence to which Guilliatt and Davis would testify. Nor is there any indication what alibi either might provide Davlin. Rather than providing any detail, Davlin alleges only conclusions of fact and law. Such are insufficient to support the granting of an evi- dentiary hearing. As such, Davlin’s fifth and final assignment of error is without merit. CONCLUSION The decision of the district court denying Davlin’s motion for postconviction relief should be affirmed. AFFIRMED. WRIGHT, J., participating on briefs. IN RE INTEREST OF ANGELICA L. AND DANIEL L., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, V . MARIA L., APPELLANT. ___N.W.2d___ Filed June 26, 2009. No. S-08-919. 1. Juvenile Courts: 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. 2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. 3. Child Custody: States. The whole subject of domestic relations, and particularly child custody problems, is generally considered a state law matter outside fed- eral jurisdiction. 4. Juvenile Courts: Jurisdiction. The jurisdiction of the State in juvenile adjudica- tion cases arises out of the power every sovereignty possesses as parens patriae to every child within its borders to determine the status and custody that will best meet the child’s needs and wants. 5. ____: ____. To obtain jurisdiction over a juvenile, the court’s only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2004). 6. ____: ____. Neb. Rev. Stat. § 43-3804 (Cum. Supp. 2006) does not create a juris- dictional prerequisite to a juvenile court’s exercise of jurisdiction.
Transcript
Nebraska advaNce sheets
984 277nebraskareports
there is nothing in Davlin’s motion (or indeed in the record)that would suggest the nature of the exculpatory evidenceto which Guilliatt and Davis would testify. nor is there anyindicationwhat alibi eithermightprovideDavlin.rather thanproviding any detail, Davlin alleges only conclusions of factandlaw.suchareinsufficienttosupportthegrantingofanevi-dentiary hearing.as such, Davlin’s fifth and final assignmentoferroriswithoutmerit.
ConCLUsIonthe decision of the district court denying Davlin’s motion
forpostconvictionreliefshouldbeaffirmed.affirmed.
Wright,J.,participatingonbriefs.
iN re iNterest of aNgelica l. aNd daNiel l., childreN uNder 18 years of age.
state of Nebraska, appellee, v. maria l., appellaNt.
___n.W.2d___
FiledJune26,2009.no.s-08-919.
1. Juvenile Courts: Appeal and Error.Juvenilecasesarerevieweddenovoontherecord,andanappellatecourtisrequiredtoreachaconclusionindependentofthejuvenilecourt’sfindings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an appellatecourt may consider and give weight to the fact that the trial court observed thewitnessesandacceptedoneversionofthefactsovertheother.
3. Child Custody: States.thewholesubjectofdomesticrelations,andparticularlychild custody problems, is generally considered a state law matter outside fed-eraljurisdiction.
4. Juvenile Courts: Jurisdiction.thejurisdictionofthestateinjuvenileadjudica-tion cases arises out of the power every sovereignty possesses as parens patriaetoeverychildwithinitsborderstodeterminethestatusandcustodythatwillbestmeetthechild’sneedsandwants.
5. ____: ____. to obtain jurisdiction over a juvenile, the court’s only concern iswhethertheconditionsinwhichthejuvenilepresentlyfindshimselforherselffitwithintheassertedsubsectionofneb.rev.stat.§43-247(reissue2004).
7. Parental Rights: Proof.Underneb.rev.stat.§43-292(reissue2008),inorderto terminate parental rights, the state must prove, by clear and convincing evi-dence, thatoneormoreof thestatutorygrounds listed in thissectionhavebeensatisfiedandthatterminationisinthechild’sbestinterests.
8. Constitutional Law: Parental Rights: Courts. the interest of parents in thecare,custody,andcontroloftheirchildrenisperhapstheoldestofthefundamen-tallibertyinterestsrecognizedbytheU.s.supremeCourt.
10. ____: ____. Until the state proves parental unfitness, the child and his or herparentsshareavital interest inpreventingerroneous terminationof theirnaturalrelationship.Inotherwords,acourtmaynotproperlydepriveaparentofthecus-todyofhisorherminorchildunlessthestateaffirmativelyestablishesthatsuchparentisunfittoperformthedutiesimposedbytherelationship,orhasforfeitedthatright.
13. Parental Rights: Proof.regardlessofthelengthoftimeachildisplacedoutsidethe home, it is always the state’s burden to prove by clear and convincing evi-dence that theparent isunfitand that thechild’sbest interestsareservedbyhisorhercontinuedremovalfromparentalcustody.
14. Constitutional Law: Parent and Child: Presumptions: Proof.Whenconsider-ing whether removal from parental custody is in the best interests of the child,the determination requires more than evidence that one environment or set ofcircumstances is superior to another. rather, the “best interests” standard issubject to the overriding presumption that the relationship between parent andchildisconstitutionallyprotectedandthatthebestinterestsofachildareservedbyreunitingthechildwithhisorherparent.thispresumptionisovercomeonlywhentheparenthasbeenprovedunfit.
15. Parent and Child.thelawdoesnotrequiretheperfectionofaparent.16. Courts: Child Custody. the nebraska supreme Court has never deprived a
parentof the custodyof a childmerelybecauseon financial orothergrounds astrangermight“betterprovide.”
18. Appeal and Error.anappellate court isnotobligated to engage in an analysiswhichisnotneededtoadjudicatethecontroversybeforeit.
appeal from the County Court for Hall County: philip m. martiN, Jr.,Judge.reversed.
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 985
Citeas277neb.984
Nebraska advaNce sheets
986 277nebraskareports
Jeffrey r. kirkpatrick and sheria.Wortman, of McHenry,Haszard, Hansen, roth & Hupp, p.C., and brian D. buckley,Christopher M. Huck, and r. omar riojas, of DLa piper,L.L.p.(U.s.),forappellant.
Monika e. anderson, special assistant attorney General,and robert J. Cashoili, Deputy Hall County attorney, forappelleestateofnebraska.
Vincent M. powers, of Vincent M. powers & associates,and shari Lahlou, barbara H. ryland, and Christine sommer,of Crowell & Morning, L.L.p., for amicus curiae LegalMomentum.
Victor e. Covalt III, of ballew & Covalt, p.C., and JohnDe Leon, of Chavez & De Leon, p.a., for amicus curiaeConsulateGeneralofGuatemala.
In this appeal, we must balance the conflicting right of anundocumented immigrant, Maria L., to maintain custody ofherchildren,with thestate’sduty toprotectherchildrenwhocamewithherorwereborninthiscountry.Mariafailedtotakeher child, angelica L., for a followup doctor’s appointmentdespiteadiagnosisofrespiratorysyncytialvirus(rsV)andherworsening condition, which failure led to Maria’s arrest anddeportation.Maria’sotherchild,DanielL.,andangelicawereplaced in temporary emergency custody with the nebraskaDepartmentofHealthandHumanservices (DHHs), and theywerenotallowed to reunitewithMariawhenshewaseventu-allydeportedtoGuatemala.DespiteMaria’sattemptstosatisfya DHHs case plan to regain custody, her parental rights wereeventuallyterminated.
becauseof thestate’s involvementwith thefamily,Maria’sparental rights under nebraska’s juvenile law have collided
withthesanctionimposedonherbyimmigrationlaw.Wemustnow address the needs of these vulnerable children who arecaught in the clash of laws, culture, and parental rights thatoccur when their parents cross international boundaries. butthis responsibility initially lies with child protection workersand courts in the state’s juvenile system. In the present case,the taskof thechildprotectionworkers,andconsequentlyourtask,wouldhavebeenmucheasieriftheGuatemalanconsulatehad been included in these proceedings earlier.We ultimatelyconcludethattheevidencewasinsufficienttoterminateMaria’sparentalrights.
II.baCkGroUnD
1.maria aNd her childreN
Maria,anativeofGuatemala,isthemotheroffour.Inaddi-tiontoangelicaandDaniel,Mariahastwoothersons.Maria’snativelanguageisQuiché,andspanishishersecondlanguage.Mariafirstcameto theUnitedstates in1997toforgeabetterliving for herself and her two sons, her only children at thattime. During the period that Maria lived in the United states,hertwosonsremainedwithfamilymembersinGuatemala.
In1998,MarialivedinMichiganandworkedinaslaughter-house.MariagavebirthtoDanielonFebruary13,1998.WhenDaniel was approximately 5 years old, Maria went back toGuatemala to takecareofherailingmother.Maria leftDanielinMichiganunderhersister’scarewhileshewasgone.Maria’smother ultimately passed away, and about 11 or 12 monthsafter leaving the United states, Maria returned by illegallycrossingtheborderthrougharizona.
InJanuary2004,Mariagavebirth toangelica. It isunclearwhether the birth occurred shortly before or after Maria reen-teredtheUnitedstatesin2004.regardless,angelicawasbornabout2monthsprematurely.
by the time angelica was 1 month old, Maria, Daniel,and angelica were living in Grand Island, nebraska. theirwhereabouts duringangelica’s first month of life are unclear.angelica receivedmedicalattentionandcare for the first timeat 1 month of age, when Maria brought angelica to saintFrancisMedicalCenter(saintFrancis)inGrandIsland.atthat
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 987
Citeas277neb.984
Nebraska advaNce sheets
988 277nebraskareports
time,angelica weighed 3 pounds 9 ounces and was sufferingfromdehydration,malnutrition,aurinarytractinfection,andaleftpulmonarybranchstenosis.angelica remained in thehos-pitalforseveraldaysandwaseventuallydischargedonMarch3, 2004. by the time of her discharge, angelica weighed 4pounds14ouncesandshewasingoodcondition.
themedicalrecordsregardingangelica’sfirsthospitalvisitindicate that Maria expressed her desire and determination tolive in the United states. aware of Maria’s desire to remainin the United states, angelica’s treating physician warnedMaria that if she did not follow her instructions, then shewould recommend that Maria be deported. angelica’s treat-ing physician was concerned about Maria’s medical judgmentbecauseangelica had not been provided medical care sooner.angelica’s treating physician told Maria that if she did notfollowuponangelica’smedical care, shewouldnotifyChildprotectiveservices.
shortly after angelica was discharged from saint Francis,Mariavoluntarilysought theassistanceof“Healthystarts”—aprogram that provides education on the growth and develop-mentofnewbornbabies.MariasoughttheassistanceofHealthystartsbecauseshewantedinformationonhowtoproperlycareforangelica.throughHealthystarts,MariametLisanegrete,a Healthy starts employee. negrete began making regularchecks onangelica at her home to follow up withangelica’scare. she also made regular visits to the house ofangelica’sbabysitter.therecordrevealsthatafterMariabecameinvolvedwithHealthystarts,DHHswascontactedoncertainoccasionsregardingangelica’sandDaniel’swellbeing.butafterinvesti-gation,allreportsweredeemedunfounded.
onapril 3, 2005, Maria broughtangelica to saint Francisbecauseangelicahadafeverandwashavingproblemsbreath-ing.angelicawasdiagnosedwithrsV.throughaspanishlan-guageinterpreter,Mariawasinstructedtogiveangelicanebu-lizertreatmentsevery4to6hoursasneededand“tofollowupwith[thedoctor]intwodaysorreturnifsheisworse.”
Mariadidnot takeangelicaback to thedoctorbecauseshethought that angelica was recovering, so there was no needto return to the hospital.according to negrete, however, who
observedangelicaat thebabysitter’shomesometimebetweenapril 5 and 7, 2005,angelica had a temperature of over 100degrees, was lethargic, smelled foul, and had on clothingstained with vomit. negrete also observed that there was nomedication in angelica’s bag. negrete told the babysitter toadviseMariatotakeangelicatothehospitalrightaway.
negrete contacted DHHs on april 7, 2005, stating thatangelica was diagnosed with rsV and was not improving orreceiving any of her medication.theapril 7 report also con-tained allegations of abuse, but these allegations were neversubstantiatedandweredeemedtobeunfounded.basedonthisreport,Colleteevans,aDHHssocialworker,andDougCline,a spanish-speaking police officer, went to Maria’s home tofollow up on the report. When they arrived at Maria’s home,Maria answered the door, but she misidentified herself as thebabysitter. Maria told evans and Cline that Maria had leftwhile she was sleeping. Maria later explained that when shesawthepolice,shewasafraidshewouldloseherchildrenandbedeported.
Later that day, evans and Cline went to the babysitter’shome and discovered that the woman who had previouslyidentified herself as the babysitter was actually Maria. ClineobservedMarianursingangelica,andinhisopinion,angelicaappearedtobesick.Hetestifiedthatangelicacriedoutbutthatshehadnotears.evanstestifiedsimilarly,statingthatangelicaappeared lethargic, was warm to the touch, smelled foul, andhadnotearswhensheattemptedtocry.
Maria was immediately arrested for obstructing a govern-mentoperation,andangelicawasplacedinemergencyprotec-tive custody. Daniel was at school and was also placed intoprotective custody. Cline explained that Daniel was placedin protective custody “simply to provide care for him while[Maria] was incarcerated.” angelica was placed in protectivecustody because Maria allegedly neglected her by not provid-ingpropermedicalcare.
afterangelica was removed from her home and placed inthe custody of DHHs, angelica was taken to the emergencyroom and was hospitalized for 4 days. once her symptomswereundercontrol,angelicawasreleasedtofosterplacement.
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 989
Citeas277neb.984
Nebraska advaNce sheets
990 277nebraskareports
shortlyafterherarrest,MariawastakenintocustodybyU.s.Immigration and Customs enforcement. the original obstruc-tionchargesagainstMariawerenotpursued.Mariawassched-uled to be deported on May 10, 2005. onapril 8, 2005, thestatefiledajuvenilepetitionallegingthatangelicaandDanielwere juveniles as defined by neb. rev. stat. § 43-247(3)(a)(reissue 2004) because they lacked proper parental care byreasonofthefaultorhabitsofMaria(countI);becauseMarianeglectedorrefusedtoprovideproperornecessaryassistance,education, or other care necessary for their health morals orwell being (count II); and because they were in a situationorengaged inanoccupationdangerous to their lifeor limborinjurioustotheirhealth(countIII).
onapril 13, 2005, the court held an initial hearing. Mariaattended the hearing, but was not represented by counsel.through a spanish language interpreter, she was informed ofherrightsandthenatureofthepetition.Mariagenerallydeniedthe allegations. because Maria was incarcerated, the courtordered thatangelicaandDaniel should remain in the tempo-rarycustodyofDHHspendingadjudication.
thestatewasawarethatMaria’sincarcerationwasatempo-rary condition pending deportation. However, the state deter-mined that it would not be returning the children to Maria totake with her to Guatemala “based on concerns [it] had fortheir safety.” During the month that Maria was incarceratedpending deportation, she was provided only one visit withherchildren.
althoughawarethatMariawouldnolongerbeinthecoun-trybythattime,thecourtsettheadjudicationhearingforJuly11, 2005. Maria was therefore not present at the hearing. shewas instead represented by her legal counsel. at the state’srequest, the court struck count I of the petition. In support ofitsremainingallegations,thestateofferedasevidencetheaffi-davit of shawn Laroche, a Child protective services workeremployedbyDHHs;a reportpreparedby thecourt-appointedspecial advocate; and the genetic testing report demonstratingthat Maria wasangelica’s biological mother. Maria’s counselpresentednoevidenceonMaria’sbehalf.
Laroche’s affidavit, which was the original affidavit reliedonwhenthechildrenwereremoved,summarizedtheeventsofapril 7, 2005, and stated that in Laroche’s opinion, it wouldbeinthebestinterestsofthechildrentobeplacedinthetem-porary custody of DHHs. the court concluded that immedi-ate reunification ofangelica and Daniel in the parental homewould be contrary to their health, safety, and welfare becauseMariahadbeendeportedtoGuatemala.thecourtorderedtem-porary custody ofangelica and Daniel to remain with DHHsand ordered DHHs to prepare a plan of rehabilitation. DHHsplaced the children in at least three different foster familiesuntil they were placed, on september 6, 2005, with their cur-rentfosterparents.
2.case plaNs
the court held dispositional hearings on september 8 andDecember 8, 2005, and June 15, 2006. at all of the dispo-sitional hearings, Maria was unable to attend and counselappeared on Maria’s behalf.at the september 8 hearing, thecourt reiterated its finding that placement of the childrenwiththeirfosterparentswasappropriateandthatreunificationwouldbecontrarytothechildren’shealth,safety,andwelfare.the court adopted the case plan, which was prepared by LisaHannah, a protection and safety employee for DHHs. thecourt instructed Maria’s counsel to advise her that failure tocomplywiththecaseplan,combinedwiththechildren’sbeingoutof thehomefor15ormoreof themostrecent22months,wouldtriggeramotiontoterminateparentalrights.
the permanency goal of the case plan was reunification.othergoalsoftheseptembercaseplanincludedprovidingforthebasicneedsof thechildren,providingasafeandnurturingenvironmentforthechildren,achievingtimelypermanencyforthechildren,andaddressinganyindividualmentalhealthneedsMariamayhavehadtoeffectivelyparent.additionally,thecaseplanlistedseveraltasksforMaria,includingmaintainingajob,maintaininganappropriateresidence,notassociatingwithindi-viduals thatare involved incriminalactivities, andschedulingandcompletingapsychologicalevaluation.Mariawas tokeepin regular contact with the case manager, including providing
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 991
Citeas277neb.984
Nebraska advaNce sheets
992 277nebraskareports
notification within 48 hours of any change in employment,residence, or contact information; maintaining contact withthechildren through telephonecallsand lettersat leastonceamonth;keeping thecasemanager informedofanyprogressorcontacts with professionals; and taking a parenting class andproviding a certification of completion to the case manager.becauseMariawasinGuatemalaandDHHshadkeptthechil-dreninnebraska,physicalvisitationwasnotpossible.Contactwith the children was instead established through telephonecalls. although Maria wanted to initiate telephone calls withherchildren,shewasnotprovidedwithatelephonenumbertocontactthechildrenandanycontactwiththechildrenhadtobeinitiatedbytheirfosterparents.
afewmonthsafterarrivinginGuatemala,Mariacontactedtwo missionaries, William Vasey and pastor tomas DeJesus,seeking help regaining custody of her children. Maria pro-vided Hannah withVasey’s contact information and gave herpermission to discuss her case with Vasey and DeJesus. therecord indicates that Maria contacted DHHs several times,inquiring about how she could get her children back. all ofMaria’s communications with DHHs took place through theuse of spanish language interpreters because Hannah did notspeakspanish.
HannahinformedVaseyaboutthegeneralgoalsandrequire-mentsof thecaseplan inaugust2005.sometime inFebruary2006, Hannah spoke to Maria over the telephone and througha spanish language interpreter, and she read Maria the con-tents of the case plan. Hannah admitted that Maria neverreceived a physical, translated copy of the case plan—eventhough DHHs generally provided translated copies to othernon-englishspeakers.
on March 10, 2006, Hannah contacted Maria after learn-ing that Maria had some questions about the case plan. atthat time, Hannah told Maria that they were having difficultyarranging parenting classes and counseling for her, so Mariawould“havetotaketheinitiativeforthat”herself.
on June 2, 2006, Maria provided Hannah with DeJesus’contact information. Hannah testified that she discussed therequirements of the case plan with DeJesus and that DeJesus
said he would follow through on providing her with progressreports,counseling,andsettingupparentingeducationclassesfor Maria. From that point on, most of Hannah’s communi-cations about Maria’s case were with DeJesus, and Mariaassumed that he provided Hannah with the information sheneededregardingMaria’scompliancewiththecaseplan.
although it was Hannah’s job to monitor Maria’s progress,HannahadmittedshecouldnotdosobecauseofMaria’sloca-tion. nevertheless, it was Hannah’s opinion that Maria hadfailed to comply with the case plan requirements. Hannahtestified that for themostpart,Mariamaintainedcontactwithher and thechildrenbut that therewasaperiodof timewhenshedidnotknowhowtocontactMaria.Hannahstatedfurtherthat she never received verification that Maria had completeda parenting class and that she knew that parenting classeswere available in Guatemala. Hannah admitted that the par-enting class requirement was not based on Hannah’s personalobservationsofMaria,butwasmoreor lessa fail-safematter.Finally, Hannah explained that she never received a psycho-logical evaluation of Maria—although she did receive a writ-tenreportdiscussingthementalhealthissuesthatwomenfaceinGuatemala.
3.termiNatioN of pareNtal rights heariNgs
basedonMaria’sfailuretostrictlycomplywiththecaseplanandthepassageofmorethan15monthsofthemostrecent22months in foster care, on september 22, 2006, the state filedamotiontoterminateparentalrights.aninitialhearingonthematterwasheldonnovember9, andahearingon themotiontoterminatewasscheduledforJanuary22,2007.thecasewascontinued several times so that Maria could obtain an entryvisatoparticipateintheterminationhearings.HearingsonthemotiontoterminatewereeventuallyheldonDecember17and18,2007,withMariapresent.
Duringthehearings,thecourtheardtestimonyfromvariouswitnesses including Dr. John Meidlinger, a clinical psycholo-gist; the foster mother; Hannah; Cline; Margorie Creason, aprotectionandsafetyworkerofDHHs;Maria;negrete;evans;andVasey.
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 993
Citeas277neb.984
Nebraska advaNce sheets
994 277nebraskareports
Meidlinger testified that he believed it would be in bothangelica’sandDaniel’sbestintereststoremainwiththeirfosterparents.Meidlinger testifiedat lengthregarding theemotionaltrauma the children would suffer if they were uprooted fromtheir foster parents and sent to live in Guatemala. Meidlingerstated that the children were currently well adjusted to theirfoster care and had a positive relationship with their fosterparents. It was Meidlinger’s opinion that if the children weresent to Guatemala, they would “experience culture shock,disorientation, fearfulness, sadness and anger.” He positedthatDanielwouldneedspecialhelpandreassurancesexpress-ing those feelings, but that the adjustment would not be asdifficult for angelica. Meidlinger opined that Daniel wouldsuffer long-term effects such as “anger and confusion on along-term basis; a sense of alienation or loss, a sense of sad-ness and depression, and likely future difficulties developingcloseandtrustingrelationshipswithotherpeople.”Meidlingerpredictedthatangelicawouldsuffershort-termproblemssimi-lar to Daniel’s, including anxiety, depression, culture shock,problems developing close interpersonal relationships, and alifelong sense of loss and grief if she were returned to MariainGuatemala.
MeidlingertestifiedthatthestandardoflivinginGuatemalais lower than thestandard in theUnitedstates, thepeoplearepoorer, and there are less economic opportunities. Meidlingerwasunfamiliarwiththeeducationalsystemorathleticopportu-nitiesavailableinGuatemala.
they would have to have a parenting figure who wascompletelycommittedtothem,whohadafoundationher-self in thecultureandsomestability,bothemotionalandeconomic,andshewouldhavetobeveryskilledinunder-standing that the children were going to have a varietyof emotional reactions, that they could not be punishedout of those reactions; that theyneeded to be allowed toexpress those feelings; and that theywouldhave adepthofloveandcompassion;thatwouldhelpthechildrencon-nect to thatperson, thatmother,probably;and, thatbond
ofattractionandcaringwouldbeenoughforthechildrento letgoof someof the feelingsof lossaboutwhat theynolongerhave.
Meidlinger did not testify as to his opinion whether Mariacould meet the children’s needs. nor did he indicate that hehadanyconcernthatMariawouldphysicallyharmthechildrenoranyconcernregardingherattachmenttothem.
negrete likewise stated that she never observed any signsof physical abuse to angelica. she testified that angelica’semotionalattachmenttoMariaseemedtodecreaseafterMariastartedworkingfulltime.accordingtonegrete,Maria’sbehav-iorwithDanielwasappropriatebutunaffectionate.
Hannah explained that the children were removed fromMaria’scustodyduetoconcernsaboutangelica’shealth.afterthat, normal visitations were impossible due to Maria’s livingin Guatemala. Hannah admitted that Maria stayed in contactwith her children through telephone conversations and thattheir foster mother would report to Hannah about how theconversations went. Hannah testified that the conversations“wentokay.”
Creason began working on Maria’s case in october 2007,and she testified generally as to her observations of the chil-drenaswelladjusted tofostercare.shenoted thatallof theirmedical and dental care is paid for. she also expressed con-cernsoverMaria’spasthistoryofmedicalneglectofangelicaandMaria’s“non-performance”ofthecaseplan.
Maria testified through theaidofaspanish language inter-preter. regarding the circumstances in 2005 which lead toher arrest and the children’sbeing removed fromher custody,Mariastated:
[the doctor] said that I was supposed to come back ontuesday. I didn’t have a ride and I didn’t have a car totake her back, and that’s why I didn’t come back.afterthose days I thought that she was getting better, that’swhyIdecidedIwasn’tgoingtotakeherback.
MariaexplainedherlivingsituationinGuatemala.shelivesin Guatemala with her two other sons, who are 18 and 15years old.there is a hospital within 10 minutes, walking dis-tance, fromherhome,andMaria testified thatshecanreceive
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 995
Citeas277neb.984
Nebraska advaNce sheets
996 277nebraskareports
free medications for herself and her children. Maria testifiedshe has beds and bedding, food, pots, pans, running water,electricity, and clothing. Maria also explained that there areat least three schools where she lives that the children couldattend. Maria testified that she has maintained employment.therecordindicatesthat togetherwithhertwooldersons, thefamilyearnsasuitableincomebyGuatemalanstandards.Whenasked about the breathing treatmentsangelica may require ifshe gets ill again, Maria stated that she would takeangelicato the doctor in Guatemala and that she can get the medicineangelicaneeds.
Vasey discussed his observations of Maria. Vasey has hadclosecontactwithMariasinceJune2005.WhenaskedifVaseyhad concerns about returning the children to Maria, includingwhethertheywouldreceivepropermedicalcareandeducation,Vaseytestifiedthathehadnoconcernsandwouldnothesitateto return the children to Maria.Vasey testified that Maria hasstrong ties to her community and that the people in her com-munityrespecther.Vaseyalsohadnoconcernsabouttheedu-cation the children would receive in Guatemala.according toVasey,Maria’stwoothersonsleadhealthylivesinGuatemala.Vaseystatedhewas“reallyimpressedwith[Maria’s]abilityasacaretakerandproviderforthoseboys.”
the state did not offer any evidence to rebut the testi-mony that Maria has established an appropriate residencein Guatemala or that she is a suitable caretaker to her sonsinGuatemala.
the court received into evidence angelica’s and Daniel’smedical records from2004 through2005.those recordsshowthat Maria provided medical care to angelica and Daniel onseveral occasions. on april 1, 2004, Maria, concerned aboutangelica, brought angelica to the emergency room becauseshewascrying,wouldnoteat,hada fever, andhadnothadabowelmovement.thereport indicates thediagnosisas“Fussybaby. nasal congestion.” angelica was discharged in stablecondition. on July 2, Maria sought emergency medical atten-tionforangelicabecauseshehada“[f]everand[was]noteat-ing.”angelica was diagnosed with an ear infection and fever,andshewasdischargedinstablecondition.onJuly18,Maria
brought angelica into the emergency room again becauseangelicawas fussy andhad a fever.the records indicate thatangelicawasdiagnosedwithanearinfectioninbothearsandgas, and she was discharged in stable condition. on February20,2005,MariabroughtangelicatosaintFranciscomplainingof a fever, cough, and runnynose.themedicalnotes indicatethatangelicawasin“noacutedistress,”andshewasdiagnosedwithanupperrespiratoryinfectionandearinfection.
Maria also sought medical care for Daniel. the recordindicates that Daniel was taken to the emergency room onJuly 2, 2004, because he was vomiting. the medical recordsstate,“apparentlyhehasvomitedx five tonight.Hestartedatapproximately4:30.Hehasnotbeeneatingwellbuthasbeentakingfluidssuchasjuiceandpopwithnodifficultysince.Hehas been acting pretty normal but his mom brings him in forevaluation.”Danielwasdiagnosedwithgastroenteritisandwasdischarged in stable condition with no pain. on February 22,2005,MariaagainsoughtmedicalattentionforDaniel.Danielwasdiagnosedwithinfluenzaandsenthome.
two home studies were entered into the record regardingMaria’s ability to care for her children in Guatemala. onehomestudywaspreparedbyJosefinaMariaarellanoandrino,a child and adolescent agency supervisor on behalf of the“Child & adolescent agency” in Guatemala, and the otherhome study was prepared by Vasey. both home studies werepreparedatthestate’srequest.
In thehomestudypreparedbyVasey,hestated that“Mariaisabletoprovideaverystablelifetoherfamily.”Vasey’shomestudyindicates thatMariahasprovidedforher twoothersonswith appropriate clothing and food, and she earns a suitableincome.Vasey’s home study also stated, “[Maria] has a repu-tation in town as being an excellent mother.”Vasey describedMaria as being surrounded by extended family and as havingstrongtiestohercommunity.
afterterminationproceedingswerealreadyunderway,DHHsrequestedandrino’shomestudy toobtainareport that“wasalittle more neutral” than the home study prepared by Vasey.the andrino study contained conclusions similar to Vasey’s.andrino discussed Maria’s living conditions, explaining that
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 997
Citeas277neb.984
Nebraska advaNce sheets
998 277nebraskareports
Mariahasmaintainedsuitablehousing.thehomestudystatesthat Maria, “in spite of her cultural and low education level,has shown to be a woman that struggles and makes efforts togiveherchildrenabetterquality life.”andrinoconsiders it tobe in the children’s best interests that they be reunited withMaria.assuch,sherecommendedthatthechildrenbereturnedtoMaria.
4.commuNicatioNs With guatemalaN coNsulate
Hannah testified that she faxed a letter to the consulate forGuatemala in Houston, texas, in July 2005, inquiring aboutMaria. Hannah also testified that on February 14, 2007, shecontacted the U.s. embassy in Guatemala to get informa-tion and to request a home study. the record contains let-ters from an attorney for the Guatemalan consulate generalin Miami, Florida, and the Guatemalan consulate in Denver,Colorado. the letter from the Colorado consulate indicated itnever received notification concerning Maria’s case prior tothecommencementof theterminationproceedings.thelettersalso indicate that there were services available in Guatemaladesigned to monitor and protect the well being of childrenandthattransportationisavailableforthechildrentoreturntoGuatemalatolivewithMaria.
5.dispositioN
the juvenile court rejected Maria’s argument that it lackedjurisdiction due to violations of the Vienna Convention onConsular relations (Vienna Convention),1 concluding that itsjurisdictionwasauthorizedby§43-247.thecourtstated:
even if this Court were to find that notification wasrequired, which it does not, the testimony of the caseworker in thiscase indicated thatphonecallsweremadeandfaxesweresent to theGuatemalanConsulateand, infact, thefile in thiscase indicatescontactata laterpointbycounselundertaking representationof theGuatemalanConsulate.
the court next held that the state had met its burden ofproofandthatterminationwasinthechildren’sbestinterests.thecourtquestionedwhetherparentalunfitnessneededtobeestablished in this case in order to terminate parental rights,but itconcludedthat, regardless, thestateprovidedsufficientevidence of Maria’s unfitness. specifically, the court statedthat Maria “either a) embarked on an unauthorized trip totheUnitedstateswithanewbornprematureinfantorb)gavebirth to a premature infant in the United states. In eitherevent, it is clear that [Maria] did not provide the basic levelof prenatal and postnatal care . . . .”additionally, the courtstated Maria’s fear of deportation “serves as no excuse forher failure to provide the minimum level of health care toherchildren.”
With regard to Maria’s compliance with the case plan, thecourtconcluded thatdespite“seriousobstacles,”DHHs“wenttogreatlengthstocommunicatetherequirementsandexpecta-tions”of thecaseplan toMariaand thatMaria failed tocom-plywiththoserequirements.Insoconcluding,thecourtstated“thereisnorequirementthat[DHHs],toeffectuateacaseplan,leadamotherbythehandtotheservices.”thecourtremarkedthat “[b]eing in the status of an undocumented immigrant is,no doubt, fraught with peril and this would appear to be anexampleofthatfact.”
the court noted that neither angelica nor Daniel werefamiliar with Guatemala or had ever met their two half sib-lings and that both children were thriving in the only localitytheyhaveeverknownwith theonlyparentalfigures theyhaveever known.accordingly, the court terminated Maria’s paren-talrights.
Mariafiledamotionfornewtrialallegingthatnewevidencewasavailabletoestablishthatshehadreceivedandcompletedparentingclasses.Maria sought to introduce thenewevidencetoprovethatshehadcompliedwiththecaseplan.WhenMariawas asked why she had not informed Hannah sooner that shecompleted a parenting class, Maria testified that she was notasked whether she had completed the parenting class, andshe testified that she assumed DeJesus was keeping Hannahinformedaboutthecounseling.Mariaalsomaintainedthatshe
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 999
Citeas277neb.984
Nebraska advaNce sheets
1000 277nebraskareports
hadadifficult timeunderstandingwhatpeople saidat the ter-minationhearings,becausespanishishersecondlanguageandeveryonewastalkingtooquickly.thecourtdeniedthemotionandconcludedthatMariadidnotsufficientlyestablishthattheinformation was not available at the time of the terminationhearings.Mariaappeals.
erredin(1)concludingthatherparentalrightsshouldbetermi-natedpursuanttoneb.rev.stat.§43-292(6)and(7)(reissue2008),(2)concludingthatitwasinthechildren’sbestintereststo terminate her parental rights, (3) concluding that her dueprocess rights were not violated, (4) allowing her counsel todeliver ineffective assistance of counsel, and (5) overrulingher motion for new trial. Maria also contends that the courthadnojurisdictiontoenteranyorderwithrespect toangelicaorDaniel.
Maria maintains that the juvenile court lacked jurisdic-tion to determine custody. Maria argues that once the U.s.Immigration and Customs enforcement became involved anddeportation proceedings were scheduled, the state no longerhad jurisdictionand that thestate shouldhavedeferred to thefederal government. additionally, Maria argues that DHHs
2 In re Interest of Xavier H.,274neb.331,740n.W.2d13(2007). 3 In re Interest of Tyler F.,276neb.527,755n.W.2d360(2008).
Iftherelevantinformationisavailabletothecompetentauthorities of the receiving state, such authorities shallhavetheduty:
....(b) to inform the competent consular post without
delay of any case where the appointment of a guardianor trustee appears to be in the interests of a minor orother person lacking full capacity who is a national ofthe sending state. the giving of this information shall,however, be without prejudice to the operation of thelaws and regulations of the receiving state concerningsuchappointments.
Maria argues that although the state did eventually notifythe Guatemalan consulate, the notification was delayed andsuch delay defeated the purpose of the Vienna Convention.alternatively,Mariamaintains thatdespite the juvenilecourt’sfinding that the state complied with the Vienna Convention,the state failed to comply with statutory jurisdictional pre-requisites.thus, Maria argues the state did not have jurisdic-tion. We conclude that the juvenile court properly exercisedjurisdictionoverthechildcustodyproceedings.
(a)FederalJurisdictionVersusstateJurisdiction
[3,4] our court has never addressed whether state courtshave jurisdiction over child custody disputes when a parentinvoluntarily faces deportation. However, case law from otherjurisdictions indicates that issues concerning child custodyarewithin theprovinceofstate jurisdiction,not federal immi-gration jurisdiction, even when a parent involuntarily facesdeportation.5 the whole subject of domestic relations, andparticularly child custody problems, is generally considered a
4 ViennaConvention,supranote1. 5 seeJohns v. Department of Justice of United States,653F.2d884(5thCir.
1981). see, also, Huynh Thi Anh v. Levi, 427 F. supp. 1281 (D.C. Mich.1977).
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 1001
Citeas277neb.984
Nebraska advaNce sheets
1002 277nebraskareports
state law matter outside federal jurisdiction.6 We cannot con-clude, simply because a party to this case faces deportation,that federal immigration lawspreempt thisstate’sauthority todecidemattersinvolvingchildcustody.Wehavestatedthatthejurisdiction of the state in juvenile adjudication cases arisesoutofthepowereverysovereigntypossessesasparenspatriaeto every child within its borders to determine the status andcustody that will best meet the child’s needs and wants.7 assuch, the juvenile court properly exercised jurisdiction overangelicaandDaniel.
(b)ComplianceWithViennaConventionand§43-3804
Whether compliancewith theViennaConvention is a juris-dictional prerequisite to parental termination actions involv-ing foreign nationals is an issue of first impression for thiscourt.although we were presented with the same issue in In re Interest of Aaron D.,8 we declined to decide whether com-pliance with the Vienna Convention was jurisdictional. Wereasoned that because the juvenile court erred in terminatingthe mother’s parental rights, we did not need to address themother’s remaining assignments of error. However, becausethe mother raised a potential jurisdictional issue, we tooknote of her argument that the court lacked jurisdiction basedon the state’s failure to comply with theVienna Convention.additionally, we reasoned that the record was devoid of anyevidence regarding whether the Mexican consulate had beeninformedoftheterminationproceedings,andassuch,wecon-cludedthatwecouldnotconductameaningfulanalysis.9
otherjurisdictionshaveconsideredthesameissueandhaveconcluded that compliance with the Vienna Convention is
6 seeSchleiffer v. Meyers,644F.2d656(7thCir.1981),citingIn re Burrus,136U.s.586,10s.Ct.850,34L.ed.500(1890).
7 In re Interest of M.B. and A.B.,239neb.1028,480n.W.2d160(1992). 8 In re Interest of Aaron D.,269neb.249,691n.W.2d164(2005). 9 Id.
not a jurisdictional prerequisite.10 In In re Stephanie M.,11 theCalifornia supreme Court concluded that any delay in noticeto the Mexican consulate did not deprive the California courtof jurisdiction. Insoconcluding, thecourtanalyzedand inter-preted the language of the Vienna Convention to mean thatthe jurisdiction of the receiving state is permitted to apply itslawstoaforeignnationalandthat theoperationof thereceiv-ing state’s law isnotdependentuponprovidingnoticeaspre-scribedbytheViennaConvention.
other jurisdictions have concluded that state courts do notlose jurisdiction for failing to notify the foreign consulate asrequired by the Vienna Convention unless the complainantshowsthatheorshewasprejudicedbysuchfailuretonotify.12Moreover,wherethereisactualnotice, jurisdictionsdeclinetoinvalidatechildcustodyproceedingsbasedonviolationsoftheViennaConvention.13
In the present case, the record presents conflicting testi-mony regarding whether and when the Guatemalan consulatewasnotifiedaboutMaria’scase.Hannahtestifiedthatshesentnotification to the Guatemalan consulate of Colorado, but let-ters from the Guatemalan consulate claim that no such noticewaseverreceived.basedonHannah’stestimonythattelephonecallsweremadeandfaxesweresenttotheGuatemalanconsul-ate and the fact that counsel was later appointed to representtheGuatemalanconsulate,thejuvenilecourtconcludedthatthestate had complied with theVienna Convention.the juvenilecourt specificallynoted that regardlessofwhether compliancewith the Vienna Convention was required, Hannah had madeefforts tonotify theGuatemalanconsulate anddid so incom-pliance with the Vienna Convention. an appellate court does
10 seeIn re Stephanie M.,7Cal.4th295,867p.2d706,27Cal.rptr.2d595(1994).
11 Id.12 see,Breard v. Greene,523U.s.371,118s.Ct.1352,140L.ed.2d529
(1998);E.R. v. Office of Family & Children, 729n.e.2d1052 (Ind.app.2000).
13 seeArteaga v. Texas Dept. of Prot. and Reg.,924s.W.2d756(tex.app.1996).
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 1003
Citeas277neb.984
Nebraska advaNce sheets
1004 277nebraskareports
not reweigh the evidence or resolve conflicts in the evidence,but, rather, recognizes the trial court as the finder of fact andconsidersitobservedthewitnesses.14assuch,weconsiderthatthejuvenilecourtobservedthewitnessesandbelievedonever-sionofthefactsovertheother.andassumingwithoutdecidingthatcompliancewith theViennaConvention isa jurisdictionalprerequisite,wecannotsay,basedontherecordbeforeus,thatthe juvenile court’s finding that the state complied with theViennaConventionwaserroneous.
but Maria argues that the state failed to comply with neb.rev.stat.§43-3804(Cum.supp.2006)andthatsuchcompli-ance is also a jurisdictional prerequisite. at the time of thejuvenilecourt’sdecision,§43-3804(2)stated:
the department shall notify the appropriate consulatein writing within ten working days after (a) the initialdate the department takes custody of a foreign nationalminor or a minor holding dual citizenship or the datethe department learns that a minor in its custody is aforeign national minor or a minor holding dual citizen-ship, whichever occurs first, (b) the parent of a for-eign national minor or a minor holding dual citizenshiphas requested that the consulate be notified, or (c) thedepartment determines that a noncustodial parent of aforeign national minor or a minor holding dual citizen-ship in its custody resides in the country representedbytheconsulate.
section 43-3804 was enacted by the Legislature in 2006,after the children had been removed but before the juvenilecourtorderedthatMaria’sparentalrightsbeterminated.Mariaargues that § 43-3804 applies retroactively and that the statedidnotcomplywith§43-3804.becausethestatedidnotcom-plywith§43-3804,Mariaarguesthatthejuvenilecourtdidnothavejurisdiction.
[5,6]Wehave stated that toobtain jurisdictionover a juve-nile, the court’s only concern is whether the conditions inwhich the juvenilepresentlyfindshimselforherself fitwithin
14 In re Interest of Tyler F., supranote3.
the asserted subsection of § 43-247.15 as such, we concludethat § 43-3804 does not create a jurisdictional prerequisiteto a juvenile court’s exercise of jurisdiction. In other words,whenthestatefailstostrictlycomplywiththerequirementsof§43-3804, the juvenilecourt isnotdivestedof its jurisdictionto make decisions regarding a juvenile of which it properlyexercisedjurisdictionunder§43-247.
In sum, we conclude that the juvenile court properly exer-cisedjurisdictionoverangelicaandDaniel.
2.sufficieNcy of evideNce to termiNate pareNtal rights
before we consider whether the state proved by clear andconvincingevidencethatterminationofMaria’sparentalrightswasinangelica’sandDaniel’sbestinterests,wetakeamomentand address certain issues regarding the dilemma we are pre-sented with. First, we recognize that the children in this casehave lived in the United states and with a seemingly healthyfosterhomeforapproximately4years.thisdelaywasdue, inpart, to the difficulties inherent to Maria’s location. our deci-sion in this case will undoubtedly have serious impacts onthese children. However, we are faced with deciding whetherthechildrenshouldremain in theUnitedstatesorbe returnedto Maria in Guatemala. With that in mind, we now turn towhetherthestateprovedbyclearandconvincingevidencethattermination of Maria’s parental rights was in angelica’s andDaniel’sbestinterests.
[7]Itisaxiomaticthatunder§43-292,inordertoterminateparental rights, the state must prove, by clear and convincingevidence, that one or more of the statutory grounds listed inthis section have been satisfied and that termination is in thechild’s best interests.16and the proper starting point for legalanalysis when the state involves itself in family relations isalwaysthefundamentalconstitutionalrightsofaparent.17
15 In re Interest of Anaya,276neb.825,758n.W.2d10(2008);In re Interest of Brian B. et al.,268neb.870,689n.W.2d184(2004);§43-247.
16 In re Interest of Xavier H., supranote2.17 Id.
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 1005
Citeas277neb.984
Nebraska advaNce sheets
1006 277nebraskareports
[8-10]Wehave explained that the interest ofparents in thecare, custody,andcontrolof their children isperhaps theold-estof the fundamental liberty interests recognizedby theU.s.supreme Court.18 accordingly, before the state attempts toforceabreakupofanatural family,over theobjectionsof theparentsand theirchildren, thestatemustproveparentalunfit-ness.19 “‘[U]ntil the state proves parental unfitness, the childand his [or her] parents share a vital interest in preventingerroneous terminationof theirnatural relationship.’”20 Inotherwords,acourtmaynotproperlydepriveaparentofthecustodyof his or her minor child unless the state affirmatively estab-lishesthatsuchparentisunfittoperformthedutiesimposedbytherelationship,orhasforfeitedthatright.21
[11-13]Wehavealsoexplainedthatthefactthatachildhasbeenplacedoutsidethehomefor15ormoreofthemostrecent22 months does not demonstrate parental unfitness.22 Instead,the placement of a child outside the home for 15 or more ofthemost recent22monthsunder§43-292(7)merelyprovidesa guideline for what would be a reasonable time for parentsto rehabilitate themselves to a minimum level of fitness.23regardless of the length of time a child is placed outside thehome, it is always the state’s burden to prove by clear andconvincingevidencethattheparentisunfitandthatthechild’sbest interestsareservedbyhisorhercontinuedremoval fromparentalcustody.24
[14]When considering whether removal from parental cus-tody is in the best interests of the child, the determinationrequires more than evidence that one environment or set of
18 Id.19 seeid.20 Id. at 348, 740 n.W.2d at 24-25, quoting Santosky v. Kramer, 455 U.s.
745,102s.Ct.1388,71L.ed.2d599(1982).21 seeIn re Interest of Xavier H., supranote2.22 Id.23 Id.seeIn re Interest of Ty M. & Devon M.,265neb.150,655n.W.2d672
(2003).24 seeIn re Interest of Xavier H., supranote2.
circumstances is superior to another. rather, the “best inter-ests” standard is subject to the overriding presumption thatthe relationship between parent and child is constitutionallyprotected and that the best interests of a child are served byreunitingthechildwithhisorherparent.25thispresumptionisovercomeonlywhentheparenthasbeenprovedunfit.26
the juvenile court in this case concluded that the stateproved,byclearandconvincingevidence,thatMaria’sparentalrights ought to be terminated pursuant to § 43-292(6) and (7)and that such terminationwas inangelica’s andDaniel’s bestinterests.WedeterminethatthestatefailedtoconsiderMaria’scommanding constitutional interest, and the state failed torebutthepresumptionthatitisinangelica’sandDaniel’sbestintereststoreunitewithMaria.
thestatepresentedseveralwitnessestotestifyatthetermi-nation hearing, but none of the state’s witnesses were askedaboutMaria’sparental fitnessandnothing in therecordestab-lishesthatMariaisanunfitparent.thestateandtheguardianad litem argue simply that Maria’s failure to provide medicalcare toangelica—in two isolated instances—was sufficient toterminateherparentalrights.Wedisagree.
[15]Whilewe recognize and express concernoverMaria’smedical judgment, we disagree that such error in judgmentwarranted termination of her parental rights.We have repeat-edly said that the law does not require the perfection ofaparent.27
Mariacrossedthebordereitherpregnantorwithanewborninfant. We do not know the details of Maria’s circumstanceswhilecrossing theborder,but, regardless,wedonotconcludethat Maria’s attempt to bring herself and her child into theUnited states, in the belief that they would have a better lifehere, shows an appreciable absence of care, concern, or judg-ment. because of a fear of being deported, and perhaps othercircumstancesofwhichweareunaware,Mariawashesitantto
25 Id.26 Id.27 In re Interest of Xavier H., supranote2;In re Interest of Aaron D., supra
note8.
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 1007
Citeas277neb.984
Nebraska advaNce sheets
1008 277nebraskareports
seek medical attention forangelica when she was first born.therecordisunclearwhenMariabecameawarethatangelicawasnotthriving,buttherecordshowsthatMariatookangelicaformedical careby the time shewas1monthold.after that,Maria regularly sought medical care for her children, despiteher ongoing fear of deportation. on these occasions, the chil-dren’sillnessesweredeemednotserious.WhenMariafailedtotakeangelica to thefollowupappointmentaftershewasdiag-nosedwithrsV,Mariathoughtangelicawasgettingbetterandalso, she did not have a ride to the appointment. there is noevidence calling into question the sincerity of Maria’s assess-mentofthemedicalsituation.Mariamadeobviousmistakesinmedical judgment, but they are insufficient lapses to establishher unfitness to parent. Moreover, Maria has demonstrated acontinual willingness to learn more about how to avoid suchmistakes in the future. after angelica’s initial visit to thedoctor, which resulted in a 4-day hospital stay, Maria soughtadvicefromnegreteonhowtoproperlycareforangelica.andwhennegreteadvisedMaria to takeangelica to thedoctor in2004,Mariadid.
WhenMariawasquestionedattheterminationhearingaboutwhethersheknewhowtoprovideangelicawithpropermedi-calcare,shetestifiedthatshewouldtakeangelicatothehos-pital so the doctor can treat her.additionally, Maria testifiedthat she has access to free medications and hospitals withinwalking distance from her home. the evidence presented isthat Maria would provide adequate medical care forangelicaandDanielinGuatemala.
the evidence from the home studies is that Maria hasestablished a stable living environment in Guatemala andcan provide for all of her children’s basic needs. they alsoindicate that Maria is a fit parent and that it would be in thebest interests ofangelica and Daniel to be returned to MariainGuatemala.
the juvenile court seemingly ignored the overwhelmingevidenceprovided in thehomestudies, and thestate failed toprovide any testimonial evidence rebutting the indications ofthetwohomestudies.Instead,thestateintroducedtestimonialevidenceattempting toshow that itwouldbe in thechildren’s
bestintereststoremainwiththeirfosterparents,becauselivingin Guatemala would put them at a disadvantage compared toliving in the United states.What we are dealing with here isa culture clash. However, whether living in Guatemala or theUnitedstatesismorecomfortableforthechildrenisnotdeter-minative of the children’s best interests. We reiterate that the“best interests” of the child standard does not require simplythat a determination be made that one environment or set ofcircumstancesissuperiortoanother.28
[16] We are mindful that Daniel has always lived in theUnitedstates and thatangelicahasbeen in theUnitedstatessinceshewasaninfant.Wealsoacknowledgethatthechildrenseemedtobedoingwellintheirfosterhome.butunlessMariais found to be unfit, the fact that the state considers certainadoptive parents, in this case the foster parents, “better,” orthisenvironment“better,”doesnotovercomethecommandingpresumption that reuniting the children with Maria is in theirbestinterests—nomatterwhatcountryshelivesin.aswehavestated, this court “‘“has never deprived a parent of the cus-todyofachildmerelybecauseonfinancialorothergroundsastrangermightbetterprovide.”’”29
thejuvenilecourtexpressedconcernregardingthechildren’sextendedplacementoutsideof thehomeand for their need tostayinfosterplacement,“theonlycircumstancesthattheyhaveever known.”While we share the same concern regarding thechildren’sextended fosterplacement,wemustprotectMaria’scommanding constitutional interest. Maria did not forfeit herparentalrightsbecauseshewasdeported.Wenotethatthiscir-cumstancewouldnotexisthadthestateallowedMariatotakethe children with her to Guatemala. It is especially clear thatas toDaniel,as soonasMariawas released fromcustodyandawaitingdeportation,Danielcouldhavebeensafelyreturnedtoher.at oral arguments,when thestatewas askedwhyDanielwasplacedincustody,thestate’sonlyresponsewasthatithadreceivedunsubstantiatedreportsofabuse.andasforangelica,
28 In re Interest of Xavier H., supra note2.29 Id.at350-51,740n.W.2dat26,quotingIn re Guardianship of D.J.,268
neb.239,682n.W.2d238(2004).
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 1009
Citeas277neb.984
Nebraska advaNce sheets
1010 277nebraskareports
the record reveals that while Maria was being detained bythe U.s. Immigration and Customs enforcement, angelicareceivedthemedicalcaresheneededandhadrecoveredbeforeMariawasdeported.
thegovernmentofGuatemalahas the resources tomonitorthe children’s well being and angelica’s rehabilitation, and,thus,thestatehasfailedtoprovethatreunificationwhileMariacontinuedwithhercaseplaninGuatemalawouldendangerthechildren. Instead, the record demonstrates that the state madeno efforts to reunify Maria and the children largely becauseDHHs thought the childrenwouldbebetteroff staying in theUnitedstates.butsolongastheparentiscapableofprovidingfor thechildren’sneeds,whatcountry thechildrenwill live inisnotacontrollingfactorindeterminingreunification.
[17]thestatealsomaintainsthatMariaisunfitbecauseshefailed tocomplywith thecaseplanadoptedby thecourt. It isthe burden of the state, and not the parent, to prove by clearand convincing evidence that the parent has failed to comply,in whole or in part, with a reasonable provision material tothe rehabilitative objective of the case plan.30 the state hasfailed to sustain its burden in this case.While it may be truethat Maria did not strictly fulfill every detail of the case planrequirements,Mariaclearlyprogressed,andanydeficienciesinfollowingthecaseplanareinadequatetoproveunfitness.
From thebeginning, thestatewas less thanhelpful inpro-viding Maria with a compliable case plan. although Hannahacknowledgedthatcaseplansareprovidedtospanishspeakersin their native language, Maria never received a copy of thecase plan in her native language. there is no evidence in therecordtosuggestthatMariaeverreceivedawrittencopyofthecase plan in any language—despite the fact that Hannah hadaccesstoMaria’saddress.althoughthecaseplanwaspreparedin september 2005, Maria was never directly informed of thecontentsof thecaseplanuntil sometime inFebruary2006.atthat time, Hannah simply read the plan over the telephone toMariaandthentoldherthatshewouldhavetotaketheinitia-tiveherselftocomplywiththecaseplan,becauseHannahwas
30 seeIn re Interest of Kassara M.,258neb.90,601n.W.2d917(1999).
having ahard time settingup aparenting classor counseling.therecorddoesnotcontainanyevidenceshowingwhateffortsHannahactuallymade.
Despite thisnotable lackofguidanceon thepartofDHHs,Maria progressed and generally complied with the case plan.Maria remained in contactwithher children, by telephone, asrequired by the case plan. Martha testified that she initiatedtelephonecallsbetweenMariaand thechildrenapproximatelyonce a month. additionally, the record shows that Maria hasestablished and maintained a home for herself and her otherchildren in Guatemala. Maria testified, and other evidenceconfirms, that she has everything her family needs, includingrunning water, a bathroom, pots and pans, dishes, a kitchentable, and beds. Maria is employed, and there is no evidencein the record indicating thatMaria associateswith individualsinvolvedincriminalactivity.
theonlytworequirementsMariadidnotseeminglycomplywith includedgettingapsychological evaluationandcomplet-ingaparentingclass.Hannah testified that shenever receivedanyinformationindicatingMariawaspsychologicallyevaluatedbutthatshedidreceiveageneralletterdescribingtheconcernsand living conditions of women in Guatemala. our review oftherecordrevealsthatHannahneverinformedanyone,includ-ingDeJesus,Vasey,orMaria,thatthepsychologicalreportshereceivedwasnot sufficient.WhenHannahwas askedwhy thecaseplanrequiredMariatoreceiveapsychologicalevaluation,Hannahexplainedthatitwasjust“commonpractice”torequireit. the record does not indicate that Maria actually sufferedfrom any psychological health issues which would affect herability to properly care for the children or that the state wasactually concerned with Maria’s psychological health. as fortheparentingclasses,Hannahconcluded thatMariahadfailedtocomplywith this requirementbasedsolelyon the failure tohearotherwise.HannahexplainedthatduetoMaria’slocation,she could not monitor Maria’s progress, and thus essentiallyplacedtheburdenonMariatoshowshehadmetthecaseplanrequirements.WenotethatdespitethefactthatMariawasnor-mallyavailablebycellular telephone,Hannahneverattemptedto call and ask her how she was progressing with the case
Nebraska advaNce sheets
InreInterestoFanGeLICaL.&DanIeLL. 1011
Citeas277neb.984
Nebraska advaNce sheets
1012 277nebraskareports
plan requirements.evenwhenMariawasagainpresent in theUnitedstatesforthehearing,thestateneverevenaskedMariathe simple question of whether she had completed a parent-ingclass.
thus, at most, the state proved that Maria failed to submittoapsychologicalevaluation,whichsheseeminglyunderstoodhad been satisfied and which the state admits was not neces-sary for Maria to become a fit parent. otherwise, it is clearthatMariamadeagenuineefforttofollowacaseplanthatwasimposeduponherwithlittleguidance.Herfailuretofollowtheplan as thoroughly as DHHs desired is simply not probativeof Maria’s fitness to parent. the undisputed evidence is thatshehasbeenabletoestablishinGuatemalaanappropriateliv-ing environment and that she can provide for her children, inaccordancewiththecaseplan.
as such, we conclude that the court erred in finding thatthe state established, by clear and convincing evidence, thattermination of Maria’s parental rights was in angelica’s andDaniel’sbest interests.Firstandforemost,achild’sbest inter-estsarepresumedtolieinthecareandcustodyofafitparent.the state failed to sustain its burden to prove by clear andconvincingevidencethatMariaisunfit.thisevidentiaryfailureis related to the state’s initial failure to make greater effortsto involve the Guatemalan consulate and keep the family uni-fied. because the state did not make this effort, it had scantevidence to support its claims that Maria was unable to careforherchildren.
[18] In conclusion, we are mindful that the children willbe uprooted. but we are not free to ignore Maria’s constitu-tional right to raise her children in her own culture and withthe children’s siblings. that the foster parents in this countrymightprovide ahigher standardof livingdoesnotdefeat thatright.Havingsoconcluded,wedonotaddressMaria’sremain-ing assignments of error. an appellate court is not obligatedtoengage inananalysiswhich isnotneededtoadjudicate thecontroversybeforeit.31
31 Burke v. McKay,268neb.14,679n.W.2d418(2004).
VI.ConCLUsIonWe conclude that the state properly exercised jurisdiction
overangelica and Daniel. However, the state did not presentclear and convincing evidence that termination of Maria’sparental rights was in angelica’s and Daniel’s best interests.We,therefore,reversethejudgmentofthejuvenilecourttermi-natingMaria’sparentalrights.
gerrard,J.,concurring.I agree completely with the court’s main opinion. I write
separatelybecauseofmyconcernregardingDHHs’communi-cationswiththeGuatemalanconsulateinthiscase.Iagreewiththe court’s conclusions that compliance with neb. rev. stat.§43-3801etseq.(Cum.supp.2006&supp.2007)isnotjuris-dictional and thatDHHs’notificationof theGuatemalan con-sulate minimally satisfied theVienna Convention on Consularrelations(ViennaConvention).1thatdoesnotmean,however,that minimal compliance is the standard to which DHHs andthejuvenilecourtshouldaspire.
Itmustberememberedthattheforemostpurposeandobjec-tive of proceedings under the nebraska Juvenile Code2 is theprotection and promotion of a juvenile’s best interests.3 theLegislature has recognized that early and active involvementof a foreign consulate is beneficial where the welfare of aforeign juvenile is concerned.4 and the Vienna Conventionrepresents the judgment of the United states, and 176 othergovernments,5 that a consulate should be informed without
delaywhenaguardianappears tobe in the interestsof a for-eignminor.6
Which makes perfect sense. this case, for instance, mighthave proceeded far differently had Guatemalan consular offi-cials been appropriately and actively engaged in the processfrom the beginning.the result in this case—a rather startlingdeparturefromMaria’srightsandthechildren’sbestinterests—might have been prevented. this case illustrates why DHHs,andthejuvenilecourt,shouldnotregard§43-3801etseq.andthe obligations of the Vienna Convention as simply anotherlegalhoopto jumpthroughonthewayto termination.rather,the involvement of a foreign juvenile’s consulate should beregardedasimportanttopromotingthejuvenile’sbestinterests.the full participation of the consulate can help the juvenileand the juvenile’s parents by ensuring that their interests arerepresented, andcanalsoassistDHHs, theguardianad litem,andthejuvenilecourtbyprovidinginformationandexperiencehelpfultodeterminingthejuvenile’sbestinterests.
In other words, the apparent miscommunication in thiscase should not have happened, because if DHHs notifies aforeign consulate of a pending proceeding and receives noreply, DHHs should try again. and if DHHs does not, thentheguardianadlitemorthejuvenilecourtshouldacttoensurethattheconsulateisnotifiedandinvolved.thechildrenwhoseinterests are at issue in these proceedings deserve effectivenoticeand,hopefully,participationoftheirconsulates.DHHs’cursory compliance with what was apparently regarded as alegal technicality falls short of the effort that should be madetoprotectandpromoteachild’sbestinterests.
heavicaN,C.J., andcoNNolly andstephaN, JJ., join in thisconcurrence.
