In re Interest of Angelica L. & Daniel L.

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.
A ffirmed.
Wright, J., participating on briefs.
in re interest of A ngelicA l. And dAniel l.,
children under 18 yeArs of Age .
stAte of nebrAskA, Appellee ,
v. mAriA l., AppellAnt.
767 N.W.2d 74
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.
984 	277 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

7. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue 2008), in order
to terminate parental rights, the State must prove, by clear and convincing evi-
dence, that one or more of the statutory grounds listed in this section have been
satisfied and that termination is in the child’s best interests.
8. Constitutional Law: Parental Rights: Courts. The interest of parents in the
care, custody, and control of their children is perhaps the oldest of the fundamen-
tal liberty interests recognized by the U.S. Supreme Court.
9. Parental Rights: Proof. before the State attempts to force a breakup of a natural
family, over the objections of the parents and their children, the State must prove
parental unfitness.
10. ____: ____. Until the State proves parental unfitness, the child and his or her
parents share a vital interest in preventing erroneous termination of their natural
relationship. In other words, a court may not properly deprive a parent of the cus-
tody of his or her minor child unless the State affirmatively establishes that such
parent is unfit to perform the duties imposed by the relationship, or has forfeited
that right.
11. ____: ____. The fact that a child has been placed outside the home for 15 or more
of the most recent 22 months does not demonstrate parental unfitness.
12. Parental Rights. The placement of a child outside the home for 15 or more of the
most recent 22 months under Neb. Rev. Stat. § 43-292(7) (Reissue 2008) merely
provides a guideline for what would be a reasonable time for parents to rehabili-
tate themselves to a minimum level of fitness.
13. Parental Rights: Proof. Regardless of the length of time a child is placed outside
the home, it is always the State’s burden to prove by clear and convincing evi-
dence that the parent is unfit and that the child’s best interests are served by his
or her continued removal from parental custody.
14. Constitutional Law: Parent and Child: Presumptions: Proof. When consider-
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 of
circumstances is superior to another. Rather, the “best interests” standard is
subject to the overriding presumption that the relationship between parent and
child is constitutionally protected and that the best interests of a child are served
by reuniting the child with his or her parent. This presumption is overcome only
when the parent has been proved unfit.
15. Parent and Child. The law does not require the perfection of a parent.
16. Courts: Child Custody. The Nebraska Supreme Court has never deprived a
parent of the custody of a child merely because on financial or other grounds a
stranger might “better provide.”
17. Parental Rights: Evidence: Proof. It is the burden of the State, and not the par-
ent, to prove by clear and convincing evidence that the parent has failed to com-
ply, in whole or in part, with a reasonable provision material to the rehabilitative
objective of the case plan.
18. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the controversy before it.
Appeal from the County Court for Hall County: philip m.
mArtin, Jr ., Judge. Reversed.
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	985
Cite as 277 Neb. 984

Jeffrey R. kirkpatrick and Sheri A. 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.), for appellant.
Monika e. Anderson, Special Assistant Attorney General,
and Robert J. Cashoili, Deputy Hall County Attorney, for
appellee State of Nebraska.
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 	Legal
Momentum.
Victor e. Covalt III, of ballew & Covalt, p.C., and John
De Leon, of Chavez & De Leon, p.A., for amicus curiae
Consulate General of Guatemala.
Michael kneale, guardian ad litem.
heAvicAn, 	c.J., 	connolly, 	gerrArd, 	stephAn, 	and
mccormAck, JJ.
mccormAck, J.
I. NATURe OF CASe
In this appeal, we must balance the conflicting right of an
undocumented immigrant, Maria L., to maintain custody of
her children, with the State’s duty to protect her children who
came with her or were born in this country. Maria failed to take
her child, Angelica L., for a followup doctor’s appointment
despite a diagnosis of respiratory syncytial virus (RSV) and her
worsening condition, which failure led to Maria’s arrest and
deportation. Maria’s other child, Daniel L., and Angelica were
placed in temporary emergency custody with the Nebraska
Department of Health and Human Services (DHHS), and they
were not allowed to reunite with Maria when she was eventu-
ally deported to Guatemala. Despite Maria’s attempts to satisfy
a DHHS case plan to regain custody, her parental rights were
eventually terminated.
because of the State’s involvement with the family, Maria’s
parental rights under Nebraska’s juvenile law have collided
986 	277 NebRASkA RepORTS

with the sanction imposed on her by immigration law. We must
now address the needs of these vulnerable children who are
caught in the clash of laws, culture, and parental rights that
occur when their parents cross international boundaries. but
this responsibility initially lies with child protection workers
and courts in the State’s juvenile system. In the present case,
the task of the child protection workers, and consequently our
task, would have been much easier if the Guatemalan consulate
had been included in these proceedings earlier. We ultimately
conclude that the evidence was insufficient to terminate Maria’s
parental rights.
II. bACkGROUND
1. mAriA And her children
Maria, a native of Guatemala, is the mother of four. In addi-
tion to Angelica and Daniel, Maria has two other sons. Maria’s
native language is Quiché, and Spanish is her second language.
Maria first came to the United States in 1997 to forge a better
living for herself and her two sons, her only children at that
time. During the period that Maria lived in the United States,
her two sons remained with family members in Guatemala.
In 1998, Maria lived in Michigan and worked in a slaughter-
house. Maria gave birth to Daniel on February 13, 1998. When
Daniel was approximately 5 years old, Maria went back to
Guatemala to take care of her ailing mother. Maria left Daniel
in Michigan under her sister’s care while she was gone. Maria’s
mother ultimately passed away, and about 11 or 12 months
after leaving the United States, Maria returned by illegally
crossing the border through Arizona.
In January 2004, Maria gave birth to Angelica. It is unclear
whether the birth occurred shortly before or after Maria reen-
tered the United States in 2004. Regardless, Angelica was born
about 2 months prematurely.
by the time Angelica was 1 month old, Maria, Daniel,
and Angelica were living in Grand Island, Nebraska. Their
whereabouts during Angelica’s first month of life are unclear.
Angelica received medical attention and care for the first time
at 1 month of age, when Maria brought Angelica to Saint
Francis Medical Center (Saint Francis) in Grand Island. At that
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	987
Cite as 277 Neb. 984

time, Angelica weighed 3 pounds 9 ounces and was suffering
from dehydration, malnutrition, a urinary tract infection, and a
left pulmonary branch stenosis. Angelica remained in the hos-
pital for several days and was eventually discharged on March
3, 2004. by the time of her discharge, Angelica weighed 4
pounds 14 ounces and she was in good condition.
The medical records regarding Angelica’s first hospital visit
indicate that Maria expressed her desire and determination to
live in the United States. Aware of Maria’s desire to remain
in the United States, Angelica’s treating physician warned
Maria that if she did not follow her instructions, then she
would recommend that Maria be deported. Angelica’s treat-
ing physician was concerned about Maria’s medical judgment
because Angelica had not been provided medical care sooner.
Angelica’s treating physician told Maria that if she did not
follow up on Angelica’s medical care, she would notify Child
protective Services.
Shortly after Angelica was discharged from Saint Francis,
Maria voluntarily sought the assistance of “Healthy Starts”—a
program that provides education on the growth and develop-
ment of newborn babies. Maria sought the assistance of Healthy
Starts because she wanted information on how to properly care
for Angelica. Through Healthy Starts, Maria met Lisa Negrete,
a Healthy Starts employee. Negrete began making regular
checks on Angelica at her home to follow up with Angelica’s
care. She also made regular visits to the house of Angelica’s
babysitter. The record reveals that after Maria became involved
with Healthy Starts, DHHS was contacted on certain occasions
regarding Angelica’s and Daniel’s well being. but after investi-
gation, all reports were deemed unfounded.
On April 3, 2005, Maria brought Angelica to Saint Francis
because Angelica had a fever and was having problems breath-
ing. Angelica was diagnosed with RSV. Through a Spanish lan-
guage interpreter, Maria was instructed to give Angelica nebu-
lizer treatments every 4 to 6 hours as needed and “to follow up
with [the doctor] in two days or return if she is worse.”
Maria did not take Angelica back to the doctor because she
thought that Angelica was recovering, so there was no need
to return to the hospital. According to Negrete, however, who
988 	277 NebRASkA RepORTS

observed Angelica at the babysitter’s home sometime between
April 5 and 7, 2005, Angelica had a temperature of over 100
degrees, was lethargic, smelled foul, and had on clothing
stained with vomit. Negrete also observed that there was no
medication in Angelica’s bag. Negrete told the babysitter to
advise Maria to take Angelica to the hospital right away.
Negrete contacted DHHS on April 7, 2005, stating that
Angelica was diagnosed with RSV and was not improving or
receiving any of her medication. The April 7 report also con-
tained allegations of abuse, but these allegations were never
substantiated and were deemed to be unfounded. based on this
report, Collete evans, a DHHS social worker, and Doug Cline,
a Spanish-speaking police officer, went to Maria’s home to
follow up on the report. When they arrived at Maria’s home,
Maria answered the door, but she misidentified herself as the
babysitter. Maria told evans and Cline that Maria had left
while she was sleeping. Maria later explained that when she
saw the police, she was afraid she would lose her children and
be deported.
Later that day, evans and Cline went to the babysitter’s
home and discovered that the woman who had previously
identified herself as the babysitter was actually Maria. Cline
observed Maria nursing Angelica, and in his opinion, Angelica
appeared to be sick. He testified that Angelica cried out but that
she had no tears. evans testified similarly, stating that Angelica
appeared lethargic, was warm to the touch, smelled foul, and
had no tears when she attempted to cry.
Maria was immediately arrested for obstructing a govern-
ment operation, and Angelica was placed in emergency protec-
tive custody. Daniel was at school and was also placed into
protective custody. Cline explained that Daniel was placed
in protective custody “simply to provide care for him while
[Maria] was incarcerated.” Angelica was placed in protective
custody because Maria allegedly neglected her by not provid-
ing proper medical care.
After Angelica was removed from her home and placed in
the custody of DHHS, Angelica was taken to the emergency
room and was hospitalized for 4 days. Once her symptoms
were under control, Angelica was released to foster placement.
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	989
Cite as 277 Neb. 984

Shortly after her arrest, Maria was taken into custody by U.S.
Immigration and Customs enforcement. The original obstruc-
tion charges against Maria were not pursued. Maria was sched-
uled to be deported on May 10, 2005. On April 8, 2005, the
State filed a juvenile petition alleging that Angelica and Daniel
were juveniles as defined by Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2004) because they lacked proper parental care by
reason of the fault or habits of Maria (count I); because Maria
neglected or refused to provide proper or necessary assistance,
education, or other care necessary for their health, morals, or
well being (count II); and because they were in a situation
or engaged in an occupation dangerous to their life or limb or
injurious to their health (count III).
On April 13, 2005, the court held an initial hearing. Maria
attended the hearing, but was not represented by counsel.
Through a Spanish language interpreter, she was informed of
her rights and the nature of the petition. Maria generally denied
the allegations. because Maria was incarcerated, the court
ordered that Angelica and Daniel should remain in the tempo-
rary custody of DHHS pending adjudication.
The State was aware that Maria’s incarceration was a tempo-
rary condition pending deportation. However, the State deter-
mined that it would not be returning the children to Maria to
take with her to Guatemala “based on concerns [it] had for
their safety.” During the month that Maria was incarcerated
pending deportation, she was provided only one visit with
her children.
Although aware that Maria would no longer be in the coun-
try by that time, the court set the adjudication hearing for July
11, 2005. Maria was therefore not present at the hearing. She
was instead represented by her legal counsel. At the State’s
request, the court struck count I of the petition. In support of
its remaining allegations, the State offered as evidence the affi-
davit of Shawn LaRoche, a Child protective Services worker
employed by DHHS; a report prepared by the court-appointed
special advocate; and the genetic testing report demonstrating
that Maria was Angelica’s biological mother. Maria’s counsel
presented no evidence on Maria’s behalf.
990 	277 NebRASkA RepORTS

LaRoche’s affidavit, which was the original affidavit relied
on when the children were removed, summarized the events of
April 7, 2005, and stated that in LaRoche’s opinion, it would
be in the best interests of the children to be placed in the tem-
porary custody of DHHS. The court concluded that immedi-
ate reunification of Angelica and Daniel in the parental home
would be contrary to their health, safety, and welfare because
Maria had been deported to Guatemala. The court ordered tem-
porary custody of Angelica and Daniel to remain with DHHS
and ordered DHHS to prepare a plan of rehabilitation. DHHS
placed the children in at least three different foster families
until they were placed, on September 6, 2005, with their cur-
rent foster parents.
2. cAse plAns
The court held dispositional hearings on September 8 and
December 8, 2005, and June 15, 2006. At all of the dispo-
sitional hearings, Maria was unable to attend and counsel
appeared on Maria’s behalf. At the September 8 hearing, the
court reiterated its finding that placement of the children
with their foster parents was appropriate and that reunification
would be contrary to the children’s health, safety, and welfare.
The court adopted the case plan, which was prepared by Lisa
Hannah, a protection and safety employee for DHHS. The
court instructed Maria’s counsel to advise her that failure to
comply with the case plan, combined with the children’s being
out of the home for 15 or more of the most recent 22 months,
would trigger a motion to terminate parental rights.
The permanency goal of the case plan was reunification.
Other goals of the September case plan included providing for
the basic needs of the children, providing a safe and nurturing
environment for the children, achieving timely permanency for
the children, and addressing any individual mental health needs
Maria may have had to effectively parent. Additionally, the case
plan listed several tasks for Maria, including maintaining a job,
maintaining an appropriate residence, not associating with indi-
viduals that are involved in criminal activities, and scheduling
and completing a psychological evaluation. Maria was to keep
in regular contact with the case manager, including providing
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	991
Cite as 277 Neb. 984

notification within 48 hours of any change in employment,
residence, or contact information; maintaining contact with
the children through telephone calls and letters at least once a
month; keeping the case manager informed of any progress or
contacts with professionals; and taking a parenting class and
providing a certification of completion to the case manager.
because Maria was in Guatemala and DHHS had kept the chil-
dren in Nebraska, physical visitation was not possible. Contact
with the children was instead established through telephone
calls. Although Maria wanted to initiate telephone calls with
her children, she was not provided with a telephone number to
contact the children and any contact with the children had to be
initiated by their foster parents.
A few months after arriving in Guatemala, Maria contacted
two missionaries, William Vasey and pastor Tomas DeJesus,
seeking help regaining custody of her children. Maria pro-
vided Hannah with Vasey’s contact information and gave her
permission to discuss her case with Vasey and DeJesus. The
record indicates that Maria contacted DHHS several times,
inquiring about how she could get her children back. All of
Maria’s communications with DHHS took place through the
use of Spanish language interpreters because Hannah did not
speak Spanish.
Hannah informed Vasey about the general goals and require-
ments of the case plan in August 2005. Sometime in February
2006, Hannah spoke to Maria over the telephone and through
a Spanish language interpreter, and she read Maria the con-
tents of the case plan. Hannah admitted that Maria never
received a physical, translated copy of the case plan—even
though DHHS generally provided translated copies to other
non-english speakers.
On March 10, 2006, Hannah contacted Maria after learn-
ing that Maria had some questions about the case plan. At
that time, Hannah told Maria that they were having difficulty
arranging parenting classes and counseling for her, so Maria
would “have to take the initiative for that” herself.
On June 2, 2006, Maria provided Hannah with DeJesus’
contact information. Hannah testified that she discussed the
requirements of the case plan with DeJesus and that DeJesus
992 	277 NebRASkA RepORTS

said he would follow through on providing her with progress
reports, counseling, and setting up parenting education classes
for Maria. From that point on, most of Hannah’s communi-
cations about Maria’s case were with DeJesus, and Maria
assumed that he provided Hannah with the information she
needed regarding Maria’s compliance with the case plan.
Although it was Hannah’s job to monitor Maria’s progress,
Hannah admitted she could not do so because of Maria’s loca-
tion. Nevertheless, it was Hannah’s opinion that Maria had
failed to comply with the case plan requirements. Hannah
testified that for the most part, Maria maintained contact with
her and the children but that there was a period of time when
she did not know how to contact Maria. Hannah stated further
that she never received verification that Maria had completed
a parenting class and that she knew that parenting classes
were available in Guatemala. Hannah admitted that the par-
enting class requirement was not based on Hannah’s personal
observations of Maria, but was more or less a fail-safe matter.
Finally, Hannah explained that she never received a psycho-
logical evaluation of Maria—although she did receive a writ-
ten report discussing the mental health issues that women face
in Guatemala.
3. terminAtion of pArentAl rights heArings
based on Maria’s failure to strictly comply with the case plan
and the passage of more than 15 months of the most recent 22
months in foster care, on September 22, 2006, the State filed
a motion to terminate parental rights. An initial hearing on the
matter was held on November 9, and a hearing on the motion
to terminate was scheduled for January 22, 2007. The case was
continued several times so that Maria could obtain an entry
visa to participate in the termination hearings. Hearings on the
motion to terminate were eventually held on December 17 and
18, 2007, with Maria present.
During the hearings, the court heard testimony from various
witnesses including Dr. John Meidlinger, a clinical psycholo-
gist; the foster mother; Hannah; Cline; Margorie Creason, a
protection and safety worker of DHHS; Maria; Negrete; evans;
and Vasey.
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	993
Cite as 277 Neb. 984

Meidlinger testified that he believed it would be in both
Angelica’s and Daniel’s best interests to remain with their foster
parents. Meidlinger testified at length regarding the emotional
trauma the children would suffer if they were uprooted from
their foster parents and sent to live in Guatemala. Meidlinger
stated that the children were currently well adjusted to their
foster care and had a positive relationship with their foster
parents. It was Meidlinger’s opinion that if the children were
sent to Guatemala, they would “experience culture shock,
disorientation, fearfulness, sadness and anger.” He posited
that Daniel would need special help and reassurances express-
ing those feelings, but that the adjustment would not be as
difficult for Angelica. Meidlinger opined that Daniel would
suffer long-term effects such as “anger and confusion on a
long-term basis; a sense of alienation or loss, a sense of sad-
ness and depression, and likely future difficulties developing
close and trusting relationships with other people.” Meidlinger
predicted that Angelica would suffer short-term problems simi-
lar to Daniel’s, including anxiety, depression, culture shock,
problems developing close interpersonal relationships, and a
lifelong sense of loss and grief if she were returned to Maria
in Guatemala.
Meidlinger testified that the standard of living in Guatemala
is lower than the standard in the United States, the people are
poorer, and there are less economic opportunities. Meidlinger
was unfamiliar with the educational system or athletic opportu-
nities available in Guatemala.
When asked what characteristics a parent needed for Angelica
and Daniel to appropriately adjust, he stated:
They would have to have a parenting figure who was
completely committed to them, who had a foundation her-
self in the culture and some stability, both emotional and
economic, and she would have to be very skilled in under-
standing that the children were going to have a variety
of emotional reactions, that they could not be punished
out of those reactions; that they needed to be allowed to
express those feelings; and that they would have a depth
of love and compassion; that would help the children con-
nect to that person, that mother, probably; and, that bond
994 	277 NebRASkA RepORTS

of attraction and caring would be enough for the children
to let go of some of the feelings of loss about what they
no longer have.
Meidlinger did not testify as to his opinion whether Maria
could meet the children’s needs. Nor did he indicate that he
had any concern that Maria would physically harm the children
or any concern regarding her attachment to them.
Negrete likewise stated that she never observed any signs
of physical abuse to Angelica. She testified that Angelica’s
emotional attachment to Maria seemed to decrease after Maria
started working full time. According to Negrete, Maria’s behav-
ior with Daniel was appropriate but unaffectionate.
Hannah explained that the children were removed from
Maria’s custody due to concerns about Angelica’s health. After
that, normal visitations were impossible due to Maria’s living
in Guatemala. Hannah admitted that Maria stayed in contact
with her children through telephone conversations and that
their foster mother would report to Hannah about how the
conversations went. Hannah testified that the conversations
“went okay.”
Creason began working on Maria’s case in October 2007,
and she testified generally as to her observations of the chil-
dren as well adjusted to foster care. She noted that all of their
medical and dental care is paid for. She also expressed con-
cerns over Maria’s past history of medical neglect of Angelica
and Maria’s “non-performance” of the case plan.
Maria testified through the aid of a Spanish language inter-
preter. Regarding the circumstances in 2005 which led to her
arrest and the children’s being removed from her custody,
Maria stated:
[The doctor] said that I was supposed to come back on
Tuesday. I didn’t have a ride and I didn’t have a car to
take her back, and that’s why I didn’t come back. After
those days I thought that she was getting better, that’s
why I decided I wasn’t going to take her back.
Maria explained her living situation in Guatemala. She lives
in Guatemala with her two other sons, who are 18 and 15
years old. There is a hospital within 10 minutes’ walking dis-
tance from her home, and Maria testified that she can receive
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	995
Cite as 277 Neb. 984

free medications for herself and her children. Maria testified
she has beds and bedding, food, pots, pans, running water,
electricity, and clothing. Maria also explained that there are
at least three schools where she lives that the children could
attend. Maria testified that she has maintained employment.
The record indicates that together with her two older sons, the
family earns a suitable income by Guatemalan standards. When
asked about the breathing treatments Angelica may require if
she gets ill again, Maria stated that she would take Angelica
to the doctor in Guatemala and that she can get the medicine
Angelica needs.
Vasey discussed his observations of Maria. Vasey has had
close contact with Maria since June 2005. When asked if Vasey
had concerns about returning the children to Maria, including
whether they would receive proper medical care and education,
Vasey testified that he had no concerns and would not hesitate
to return the children to Maria. Vasey testified that Maria has
strong ties to her community and that the people in her com-
munity respect her. Vasey also had no concerns about the edu-
cation the children would receive in Guatemala. According to
Vasey, Maria’s two other sons lead healthy lives in Guatemala.
Vasey stated he was “really impressed with [Maria’s] ability as
a caretaker and provider for those boys.”
The State did not offer any evidence to rebut the testi-
mony that Maria has established an appropriate residence
in Guatemala or that she is a suitable caretaker to her sons
in Guatemala.
The court received into evidence Angelica’s and Daniel’s
medical records from 2004 through 2005. Those records show
that Maria provided medical care to Angelica and Daniel on
several occasions. On April 1, 2004, Maria, concerned about
Angelica, brought Angelica to the emergency room because
she was crying, would not eat, had a fever, and had not had a
bowel movement. The report indicates the diagnosis as “Fussy
baby. Nasal congestion.” Angelica was discharged in stable
condition. On July 2, Maria sought emergency medical atten-
tion for Angelica because she had a “[f]ever and [was] not eat-
ing.” Angelica was diagnosed with an ear infection and fever,
and she was discharged in stable condition. On July 18, Maria
996 	277 NebRASkA RepORTS

brought Angelica into the emergency room again because
Angelica was fussy and had a fever. The records indicate that
Angelica was diagnosed with an ear infection in both ears and
gas, and she was discharged in stable condition. On February
20, 2005, Maria brought Angelica to Saint Francis complaining
of a fever, cough, and runny nose. The medical notes indicate
that Angelica was in “no acute distress,” and she was diagnosed
with an upper respiratory infection and ear infection.
Maria also sought medical care for Daniel. The record
indicates that Daniel was taken to the emergency room on
July 2, 2004, because he was vomiting. The medical records
state, “Apparently he has vomited x five tonight. He started at
approximately 4:30. He has not been eating well but has been
taking fluids such as juice and pop with no difficulty since. He
has been acting pretty normal but his mom brings him in for
evaluation.” Daniel was diagnosed with gastroenteritis and was
discharged in stable condition with no pain. On February 22,
2005, Maria again sought medical attention for Daniel. Daniel
was diagnosed with influenza and sent home.
Two home studies were entered into the record regarding
Maria’s ability to care for her children in Guatemala. One
home study was prepared by Josefina Maria Arellano Andrino,
a child and adolescent agency supervisor on behalf of the
“Child & Adolescent Agency” in Guatemala, and the other
home study was prepared by Vasey. both home studies were
prepared at the State’s request.
In the home study prepared by Vasey, he stated that “Maria
is able to provide a very stable life to her family.” Vasey’s home
study indicates that Maria has provided for her two other sons
with appropriate clothing and food, and she earns a suitable
income. Vasey’s home study also stated, “[Maria] has a repu-
tation in town as being an excellent mother.” Vasey described
Maria as being surrounded by extended family and as having
strong ties to her community.
After termination proceedings were already underway, DHHS
requested Andrino’s home study to obtain a report that “was a
little 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
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	997
Cite as 277 Neb. 984

Maria has maintained suitable housing. The home study states
that Maria, “in spite of her cultural and low education level,
has shown to be a woman that struggles and makes efforts to
give her children a better quality life.” Andrino considers it to
be in the children’s best interests that they be reunited with
Maria. As such, she recommended that the children be returned
to Maria.
4. communicAtions With guAtemAlAn consulAte
Hannah testified that she faxed a letter to the consulate for
Guatemala in Houston, Texas, in July 2005, inquiring about
Maria. Hannah also testified that on February 14, 2007, she
contacted 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 general
in Miami, Florida, and the Guatemalan consulate in Denver,
Colorado. The letter from the Colorado consulate indicated it
never received notification concerning Maria’s case prior to
the commencement of the termination proceedings. The letters
also indicate that there were services available in Guatemala
designed to monitor and protect the well-being of children
and that transportation is available for the children to return to
Guatemala to live with Maria.
5. disposition
The juvenile court rejected Maria’s argument that it lacked
jurisdiction due to violations of the Vienna Convention on
Consular Relations (Vienna Convention),1 concluding that its
jurisdiction was authorized by § 43-247. The court stated:
even if this Court were to find that notification was
required, which it does not, the testimony of the case
worker in this case indicated that phone calls were made
and faxes were sent to the Guatemalan Consulate and, in
fact, the file in this case indicates contact at a later point
by counsel undertaking representation of the Guatemalan
Consulate.
1 See Vienna Convention on Consular Relations, art. 37, Apr. 24, 1963, 21
U.S.T. 77, 102.
998 	277 NebRASkA RepORTS

The court next held that the State had met its burden of
proof and that termination was in the children’s best interests.
The court questioned whether parental unfitness needed to be
established in this case in order to terminate parental rights,
but it concluded that, regardless, the State provided sufficient
evidence of Maria’s unfitness. Specifically, the court stated
that Maria “either A) embarked on an unauthorized trip to
the United States with a newborn premature infant or b) gave
birth to a premature infant in the United States. In either
event, it is clear that [Maria] did not provide the basic level
of prenatal and postnatal care . . . .” Additionally, the court
stated Maria’s fear of deportation “serves as no excuse for
her failure to provide the minimum level of health care to
her children.”
With regard to Maria’s compliance with the case plan, the
court concluded that despite “serious obstacles,” DHHS “went
to great lengths to communicate the requirements and expecta-
tions” of the case plan to Maria and that Maria failed to com-
ply with those requirements. In so concluding, the court stated
“there is no requirement that [DHHS], to effectuate a case plan,
lead a mother by the hand to the services.” The court remarked
that “[b]eing in the status of an undocumented immigrant is,
no doubt, fraught with peril and this would appear to be an
example of that fact.”
The court noted that neither Angelica nor Daniel were
familiar with Guatemala or had ever met their two half sib-
lings and that both children were thriving in the only locality
they have ever known with the only parental figures they have
ever known. Accordingly, the court terminated Maria’s paren-
tal rights.
Maria filed a motion for new trial alleging that new evidence
was available to establish that she had received and completed
parenting classes. Maria sought to introduce the new evidence
to prove that she had complied with the case plan. When Maria
was asked why she had not informed Hannah sooner that she
completed a parenting class, Maria testified that she was not
asked whether she had completed the parenting class, and
she testified that she assumed DeJesus was keeping Hannah
informed about the counseling. Maria also maintained that she
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	999
Cite as 277 Neb. 984

had a difficult time understanding what people said at the ter-
mination hearings, because Spanish is her second language and
everyone was talking too quickly. The court denied the motion
and concluded that Maria did not sufficiently establish that the
information was not available at the time of the termination
hearings. Maria appeals.
III. ASSIGNMeNTS OF eRROR
Maria assigns, restated and reordered, that the juvenile court
erred in (1) concluding that her parental rights should be termi-
nated pursuant to Neb. Rev. Stat. § 43-292(6) and (7) (Reissue
2008), (2) concluding that it was in the children’s best interests
to terminate her parental rights, (3) concluding that her due
process rights were not violated, (4) allowing her counsel to
deliver ineffective assistance of counsel, and (5) overruling
her motion for new trial. Maria also contends that the court
had no jurisdiction to enter any order with respect to Angelica
or Daniel.
IV. STANDARD OF ReVIeW
[1,2] 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 However, 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
V. ANALYSIS
1. Jurisdiction
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 and
deportation proceedings were scheduled, the State no longer
had jurisdiction and that the State should have deferred to the
federal government. Additionally, Maria argues that DHHS
2 In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
3 In re Interest of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008).
1000 	277 NebRASkA RepORTS

failed to comply with the Vienna Convention, article 37,4 which
provides in pertinent part:
If the relevant information is available to the competent
authorities of the receiving State, such authorities shall
have the duty:
. . . .
(b) to inform the competent consular post without
delay of any case where the appointment of a guardian
or trustee appears to be in the interests of a minor or
other person lacking full capacity who is a national of
the sending State. The giving of this information shall,
however, be without prejudice to the operation of the
laws and regulations of the receiving State concerning
such appointments.
Maria argues that although the State did eventually notify
the Guatemalan consulate, the notification was delayed and
such delay defeated the purpose of the Vienna Convention.
Alternatively, Maria maintains that despite the juvenile court’s
finding 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 exercised
jurisdiction over the child custody proceedings.
(a) Federal Jurisdiction Versus
State Jurisdiction
[3,4] Our court has never addressed whether State courts
have jurisdiction over child custody disputes when a parent
involuntarily faces deportation. However, case law from other
jurisdictions indicates that issues concerning child custody
are within the province of state jurisdiction, not federal immi-
gration jurisdiction, even when a parent involuntarily faces
deportation.5 The whole subject of domestic relations, and
particularly child custody problems, is generally considered a
4 Vienna Convention, supra note 1.
5 See Johns v. Department of Justice of United States, 653 F.2d 884 (5th Cir.
1981). See, also, Huynh Thi Anh v. Levi, 427 F. Supp. 1281 (D.C. Mich.
1977).
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1001
Cite as 277 Neb. 984

state law matter outside federal jurisdiction.6 We cannot con-
clude, simply because a party to this case faces deportation,
that federal immigration laws preempt this State’s authority to
decide matters involving child custody. We have stated that the
jurisdiction of the State in juvenile adjudication 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.7 As
such, the juvenile court properly exercised jurisdiction over
Angelica and Daniel.
(b) Compliance With Vienna Convention
and § 43-3804
Whether compliance with the Vienna Convention is a juris-
dictional prerequisite to parental termination actions involv-
ing foreign nationals is an issue of first impression for this
court. 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. We
reasoned that because the juvenile court erred in terminating
the mother’s parental rights, we did not need to address the
mother’s remaining assignments of error. However, because
the mother raised a potential jurisdictional issue, we took
note of her argument that the court lacked jurisdiction based
on the State’s failure to comply with the Vienna Convention.
Additionally, we reasoned that the record was devoid of any
evidence regarding whether the Mexican consulate had been
informed of the termination proceedings, and as such, we con-
cluded that we could not conduct a meaningful analysis.9
Other jurisdictions have considered the same issue and have
concluded that compliance with the Vienna Convention is
6 See Schleiffer v. Meyers, 644 F.2d 656 (7th Cir. 1981), citing In re Burrus,
136 U.S. 586, 10 S. Ct. 850, 34 L. ed. 500 (1890).
7 In re Interest of M.B. and A.B., 239 Neb. 1028, 480 N.W.2d 160 (1992).
8 In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
9 Id.
1002 	277 NebRASkA RepORTS

not a jurisdictional prerequisite.10 In In re Stephanie M.,11 the
California Supreme Court concluded that any delay in notice
to the Mexican consulate did not deprive the California court
of jurisdiction. In so concluding, the court analyzed and inter-
preted the language of the Vienna Convention to mean that
the jurisdiction of the receiving state is permitted to apply its
laws to a foreign national and that the operation of the receiv-
ing state’s law is not dependent upon providing notice as pre-
scribed by the Vienna Convention.
Other jurisdictions have concluded that state courts do not
lose jurisdiction for failing to notify the foreign consulate as
required by the Vienna Convention unless the complainant
shows that he or she was prejudiced by such failure to notify.12
Moreover, where there is actual notice, jurisdictions decline to
invalidate child custody proceedings based on violations of the
Vienna Convention.13
In the present case, the record presents conflicting testi-
mony regarding whether and when the Guatemalan consulate
was notified about Maria’s case. Hannah testified that she sent
notification to the Guatemalan consulate of Colorado, but let-
ters from the Guatemalan consulate claim that no such notice
was ever received. based on Hannah’s testimony that telephone
calls were made and faxes were sent to the Guatemalan consul-
ate and the fact that counsel was later appointed to represent
the Guatemalan consulate, the juvenile court concluded that the
State had complied with the Vienna Convention. The juvenile
court specifically noted that regardless of whether compliance
with the Vienna Convention was required, Hannah had made
efforts to notify the Guatemalan consulate and did so in com-
pliance with the Vienna Convention. An appellate court does
10 See In re Stephanie M., 7 Cal. 4th 295, 867 p.2d 706, 27 Cal. Rptr. 2d 595
(1994).
11 Id.
12 See, Breard v. Greene, 523 U.S. 371, 118 S. Ct. 1352, 140 L. ed. 2d 529
(1998); E.R. v. Office of Family & Children, 729 N.e.2d 1052 (Ind. App.
2000).
13 See Arteaga v. Texas Dept. of Prot. and Reg., 924 S.W.2d 756 (Tex. App.
1996).
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1003
Cite as 277 Neb. 984

not reweigh the evidence or resolve conflicts in the evidence,
but, rather, recognizes the trial court as the finder of fact and
considers it observed the witnesses.14 As such, we consider that
the juvenile court observed the witnesses and believed one ver-
sion of the facts over the other. And assuming without deciding
that compliance with the Vienna Convention is a jurisdictional
prerequisite, we cannot say, based on the record before us, that
the juvenile court’s finding that the State complied with the
Vienna Convention was erroneous.
but Maria argues that the State failed to comply with Neb.
Rev. Stat. § 43-3804 (Cum. Supp. 2006) and that such compli-
ance is also a jurisdictional prerequisite. At the time of the
juvenile court’s decision, § 43-3804(2) stated:
The department shall notify the appropriate consulate
in writing within ten working days after (a) the initial
date the department takes custody of a foreign national
minor or a minor holding dual citizenship or the date
the department learns that a minor in its custody is a
foreign 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 citizenship
has requested that the consulate be notified, or (c) the
department determines that a noncustodial parent of a
foreign national minor or a minor holding dual citizen-
ship in its custody resides in the country represented by
the consulate.
Section 43-3804 was enacted by the Legislature in 2006,
after the children had been removed but before the juvenile
court ordered that Maria’s parental rights be terminated. Maria
argues that § 43-3804 applies retroactively and that the State
did not comply with § 43-3804. because the State did not com-
ply with § 43-3804, Maria argues that the juvenile court did not
have jurisdiction.
[5,6] We have stated that to obtain jurisdiction over a juve-
nile, the court’s only concern is whether the conditions in
which the juvenile presently finds himself or herself fit within
14 In re Interest of Tyler F., supra note 3.
1004 	277 NebRASkA RepORTS

the asserted subsection of § 43-247.15 As such, we conclude
that § 43-3804 does not create a jurisdictional prerequisite
to a juvenile court’s exercise of jurisdiction. In other words,
when the State fails to strictly comply with the requirements of
§ 43-3804, the juvenile court is not divested of its jurisdiction
to make decisions regarding a juvenile of which it properly
exercised jurisdiction under § 43-247.
In sum, we conclude that the juvenile court properly exer-
cised jurisdiction over Angelica and Daniel.
2. sufficiency of evidence to terminAte
pArentAl rights
before we consider whether the State proved by clear and
convincing evidence that termination of Maria’s parental rights
was in Angelica’s and Daniel’s best interests, we take a moment
and address certain issues regarding the dilemma we are pre-
sented with. First, we recognize that the children in this case
have lived in the United States and with a seemingly healthy
foster home for approximately 4 years. This delay was due, in
part, to the difficulties inherent to Maria’s location. Our deci-
sion in this case will undoubtedly have serious impacts on
these children. However, we are faced with deciding whether
the children should remain in the United States or be returned
to Maria in Guatemala. With that in mind, we now turn to
whether the State proved by clear and convincing evidence that
termination of Maria’s parental rights was in Angelica’s and
Daniel’s best interests.
[7] It is axiomatic that under § 43-292, in order to terminate
parental rights, the State must prove, by clear and convincing
evidence, that one or more of the statutory grounds listed in
this section have been satisfied and that termination is in the
child’s best interests.16 And the proper starting point for legal
analysis when the State involves itself in family relations is
always the fundamental constitutional rights of a parent.17
15 In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008); In re Interest
of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004); § 43-247.
16 In re Interest of Xavier H., supra note 2.
17 Id.
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1005
Cite as 277 Neb. 984

[8-10] We have explained that the interest of parents in the
care, custody, and control of their children is perhaps the old-
est of the fundamental liberty interests recognized by the U.S.
Supreme Court.18 Accordingly, before the State attempts to
force a breakup of a natural family, over the objections of the
parents and their children, the State must prove parental unfit-
ness.19 “‘[U]ntil the State proves parental unfitness, the child
and his [or her] parents share a vital interest in preventing
erroneous termination of their natural relationship.’”20 In other
words, a court may not properly deprive a parent of the custody
of his or her minor child unless the State affirmatively estab-
lishes that such parent is unfit to perform the duties imposed by
the relationship, or has forfeited that right.21
[11-13] We have also explained that the fact that a child has
been placed outside the home for 15 or more of the most recent
22 months does not demonstrate parental unfitness.22 Instead,
the placement of a child outside the home for 15 or more of
the most recent 22 months under § 43-292(7) merely provides
a guideline for what would be a reasonable time for parents
to rehabilitate themselves to a minimum level of fitness.23
Regardless of the length of time a child is placed outside the
home, it is always the State’s burden to prove by clear and
convincing evidence that the parent is unfit and that the child’s
best interests are served by his or her continued removal from
parental custody.24
[14] When considering whether removal from parental cus-
tody is in the best interests of the child, the determination
requires more than evidence that one environment or set of
18 Id.
19 See id.
20 Id. at 348, 740 N.W.2d at 24-25, quoting Santosky v. Kramer, 455 U.S.
745, 102 S. Ct. 1388, 71 L. ed. 2d 599 (1982).
21 See In re Interest of Xavier H., supra note 2.
22 Id.
23 Id. See In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672
(2003).
24 See In re Interest of Xavier H., supra note 2.
1006 	277 NebRASkA RepORTS

circumstances is superior to another. Rather, the “best inter-
ests” standard is subject to the overriding presumption that
the relationship between parent and child is constitutionally
protected and that the best interests of a child are served by
reuniting the child with his or her parent.25 This presumption is
overcome only when the parent has been proved unfit.26
The juvenile court in this case concluded that the State
proved, by clear and convincing evidence, that Maria’s parental
rights ought to be terminated pursuant to § 43-292(6) and (7)
and that such termination was in Angelica’s and Daniel’s best
interests. We determine that the State failed to consider Maria’s
commanding constitutional interest, and the State failed to
rebut the presumption that it is in Angelica’s and Daniel’s best
interests to reunite with Maria.
The State presented several witnesses to testify at the termi-
nation hearing, but none of the State’s witnesses were asked
about Maria’s parental fitness and nothing in the record estab-
lishes that Maria is an unfit parent. The State and the guardian
ad litem argue simply that Maria’s failure to provide medical
care to Angelica—in two isolated instances—was sufficient to
terminate her parental rights. We disagree.
[15] While we recognize and express concern over Maria’s
medical judgment, we disagree that such error in judgment
warranted termination of her parental rights. We have repeat-
edly said that the law does not require the perfection of
a parent.27
Maria crossed the border either pregnant or with a newborn
infant. We do not know the details of Maria’s circumstances
while crossing the border, but, regardless, we do not conclude
that Maria’s attempt to bring herself and her child into the
United States, in the belief that they would have a better life
here, shows an appreciable absence of care, concern, or judg-
ment. because of a fear of being deported, and perhaps other
circumstances of which we are unaware, Maria was hesitant to
25 Id.
26 Id.
27 In re Interest of Xavier H., supra note 2; In re Interest of Aaron D., supra
note 8.
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1007
Cite as 277 Neb. 984

seek medical attention for Angelica when she was first born.
The record is unclear when Maria became aware that Angelica
was not thriving, but the record shows that Maria took Angelica
for medical care by the time she was 1 month old. After that,
Maria regularly sought medical care for her children, despite
her ongoing fear of deportation. On these occasions, the chil-
dren’s illnesses were deemed not serious. When Maria failed to
take Angelica to the followup appointment after she was diag-
nosed with RSV, Maria thought Angelica was getting better and
also, she did not have a ride to the appointment. There is no
evidence calling into question the sincerity of Maria’s assess-
ment of the medical situation. Maria made obvious mistakes in
medical judgment, but they are insufficient lapses to establish
her unfitness to parent. Moreover, Maria has demonstrated a
continual willingness to learn more about how to avoid such
mistakes in the future. After Angelica’s initial visit to the
doctor, which resulted in a 4-day hospital stay, Maria sought
advice from Negrete on how to properly care for Angelica. And
when Negrete advised Maria to take Angelica to the doctor in
2004, Maria did.
When Maria was questioned at the termination hearing about
whether she knew how to provide Angelica with proper medi-
cal care, she testified that she would take Angelica to the hos-
pital so the doctor can treat her. Additionally, Maria testified
that she has access to free medications and hospitals within
walking distance from her home. The evidence presented is
that Maria would provide adequate medical care for Angelica
and Daniel in Guatemala.
The evidence from the home studies is that Maria has
established a stable living environment in Guatemala and
can provide for all of her children’s basic needs. They also
indicate that Maria is a fit parent and that it would be in the
best interests of Angelica and Daniel to be returned to Maria
in Guatemala.
The juvenile court seemingly ignored the overwhelming
evidence provided in the home studies, and the State failed to
provide any testimonial evidence rebutting the indications of
the two home studies. Instead, the State introduced testimonial
evidence attempting to show that it would be in the children’s
1008 	277 NebRASkA RepORTS

best interests to remain with their foster parents, because living
in Guatemala would put them at a disadvantage compared to
living in the United States. What we are dealing with here is
a culture clash. However, whether living in Guatemala or the
United States is more comfortable for the children is not deter-
minative of the children’s best interests. We reiterate that the
“best interests” of the child standard does not require simply
that a determination be made that one environment or set of
circumstances is superior to another.28
[16] We are mindful that Daniel has always lived in the
United States and that Angelica has been in the United States
since she was an infant. We also acknowledge that the children
seemed to be doing well in their foster home. but unless Maria
is found to be unfit, the fact that the State considers certain
adoptive parents, in this case the foster parents, “better,” or
this environment “better,” does not overcome the commanding
presumption that reuniting the children with Maria is in their
best interests—no matter what country she lives in. As we have
stated, this court “‘“has never deprived a parent of the cus-
tody of a child merely because on financial or other grounds a
stranger might better provide.”’”29
The juvenile court expressed concern regarding the children’s
extended placement outside of the home and for their need to
stay in foster placement, “the only circumstances that they have
ever known.” While we share the same concern regarding the
children’s extended foster placement, we must protect Maria’s
commanding constitutional interest. Maria did not forfeit her
parental rights because she was deported. We note that this cir-
cumstance would not exist had the State allowed Maria to take
the children with her to Guatemala. It is especially clear that
as to Daniel, as soon as Maria was released from custody and
awaiting deportation, Daniel could have been safely returned to
her. At oral arguments, when the State was asked why Daniel
was placed in custody, the State’s only response was that it had
received unsubstantiated reports of abuse. And as for Angelica,
28 In re Interest of Xavier H., supra note 2.
29 Id. at 350-51, 740 N.W.2d at 26, quoting In re Guardianship of D.J., 268
Neb. 239, 682 N.W.2d 238 (2004).
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1009
Cite as 277 Neb. 984

the record reveals that while Maria was being detained by
the U.S. Immigration and Customs enforcement, Angelica
received the medical care she needed and had recovered before
Maria was deported.
The government of Guatemala has the resources to monitor
the children’s well-being and Angelica’s rehabilitation, and,
thus, the State has failed to prove that reunification while Maria
continued with her case plan in Guatemala would endanger the
children. Instead, the record demonstrates that the State made
no efforts to reunify Maria and the children largely because
DHHS thought the children would be better off staying in the
United States. but so long as the parent is capable of providing
for the children’s needs, what country the children will live in
is not a controlling factor in determining reunification.
[17] The State also maintains that Maria is unfit because she
failed to comply with the case plan adopted by the court. It is
the burden of the State, and not the parent, to prove by clear
and convincing evidence that the parent has failed to comply,
in whole or in part, with a reasonable provision material to
the rehabilitative objective of the case plan.30 The State has
failed to sustain its burden in this case. While it may be true
that Maria did not strictly fulfill every detail of the case plan
requirements, Maria clearly progressed, and any deficiencies in
following the case plan are inadequate to prove unfitness.
From the beginning, the State was less than helpful in pro-
viding Maria with a compliable case plan. Although Hannah
acknowledged that case plans are provided to Spanish speakers
in their native language, Maria never received a copy of the
case plan in her native language. There is no evidence in the
record to suggest that Maria ever received a written copy of the
case plan in any language—despite the fact that Hannah had
access to Maria’s address. Although the case plan was prepared
in September 2005, Maria was never directly informed of the
contents of the case plan until sometime in February 2006. At
that time, Hannah simply read the plan over the telephone to
Maria and then told her that she would have to take the initia-
tive herself to comply with the case plan, because Hannah was
30 See In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999).
1010 	277 NebRASkA RepORTS

having a hard time setting up a parenting class or counseling.
The record does not contain any evidence showing what efforts
Hannah actually made.
Despite this notable lack of guidance on the part of DHHS,
Maria progressed and generally complied with the case plan.
Maria remained in contact with her children, by telephone, as
required by the case plan. The record shows that there were
telephone calls between Maria and the children approximately
once a month. Additionally, the record shows that Maria has
established and maintained a home for herself and her other
children in Guatemala. Maria testified, and other evidence
confirms, that she has everything her family needs, including
running water, a bathroom, pots and pans, dishes, a kitchen
table, and beds. Maria is employed, and there is no evidence
in the record indicating that Maria associates with individuals
involved in criminal activity.
The only two requirements Maria did not seemingly comply
with included getting a psychological evaluation and complet-
ing a parenting class. Hannah testified that she never received
any information indicating Maria was psychologically evaluated
but that she did receive a general letter describing the concerns
and living conditions of women in Guatemala. Our review of
the record reveals that Hannah never informed anyone, includ-
ing DeJesus, Vasey, or Maria, that the psychological report she
received was not sufficient. When Hannah was asked why the
case plan required Maria to receive a psychological evaluation,
Hannah explained that it was just “common practice” to require
it. The record does not indicate that Maria actually suffered
from any psychological health issues which would affect her
ability to properly care for the children or that the State was
actually concerned with Maria’s psychological health. As for
the parenting classes, Hannah concluded that Maria had failed
to comply with this requirement based solely on the failure to
hear otherwise. Hannah explained that due to Maria’s location,
she could not monitor Maria’s progress, and thus essentially
placed the burden on Maria to show she had met the case plan
requirements. We note that despite the fact that Maria was nor-
mally available by cellular telephone, Hannah never attempted
to call and ask her how she was progressing with the case
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1011
Cite as 277 Neb. 984

plan requirements. even when Maria was again present in the
United States for the hearing, the State never even asked Maria
the simple question of whether she had completed a parent-
ing class.
Thus, at most, the State proved that Maria failed to submit
to a psychological evaluation, which she seemingly understood
had been satisfied and which the State admits was not neces-
sary for Maria to become a fit parent. Otherwise, it is clear
that Maria made a genuine effort to follow a case plan that was
imposed upon her with little guidance. Her failure to follow the
plan as thoroughly as DHHS desired is simply not probative
of Maria’s fitness to parent. The undisputed evidence is that
she has been able to establish in Guatemala an appropriate liv-
ing environment and that she can provide for her children, in
accordance with the case plan.
As such, we conclude that the court erred in finding that
the State established, by clear and convincing evidence, that
termination of Maria’s parental rights was in Angelica’s and
Daniel’s best interests. First and foremost, a child’s best inter-
ests are presumed to lie in the care and custody of a fit parent.
The State failed to sustain its burden to prove by clear and
convincing evidence that Maria is unfit. This evidentiary failure
is related to the State’s initial failure to make greater efforts
to involve the Guatemalan consulate and keep the family uni-
fied. because the State did not make this effort, it had scant
evidence to support its claims that Maria was unable to care
for her children.
[18] In conclusion, we are mindful that the children will
be uprooted. but we are not free to ignore Maria’s constitu-
tional right to raise her children in her own culture and with
the children’s siblings. That the foster parents in this country
might provide a higher standard of living does not defeat that
right. Having so concluded, we do not address Maria’s remain-
ing assignments of error. An appellate court is not obligated
to engage in an analysis which is not needed to adjudicate the
controversy before it.31
31 Burke v. McKay, 268 Neb. 14, 679 N.W.2d 418 (2004).
1012 	277 NebRASkA RepORTS

VI. CONCLUSION
We conclude that the State properly exercised jurisdiction
over Angelica and Daniel. However, the State did not present
clear and convincing evidence that termination of Maria’s
parental rights was in Angelica’s and Daniel’s best interests.
We, therefore, reverse the judgment of the juvenile court termi-
nating Maria’s parental rights.
reversed.
Wright, J., participating on briefs.
miller-lermAn, J., not participating.
IN Re INTeReST OF ANGeLICA L. & DANIeL L. 	1013
Cite as 277 Neb. 984
gerrArd, J., concurring.
I agree completely with the court’s main opinion. I write
separately because of my concern regarding DHHS’ communi-
cations with the Guatemalan consulate in this case. I agree with
the court’s conclusions that compliance with Neb. Rev. Stat.
§ 43-3801 et seq. (Cum. Supp. 2006 & Supp. 2007) is not juris-
dictional and that DHHS’ notification of the Guatemalan con-
sulate minimally satisfied the Vienna Convention on Consular
Relations (Vienna Convention).1 That does not mean, however,
that minimal compliance is the standard to which DHHS and
the juvenile court should aspire.
It must be remembered that the foremost purpose and objec-
tive of proceedings under the Nebraska Juvenile Code2 is the
protection and promotion of a juvenile’s best interests.3 The
Legislature has recognized that early and active involvement
of a foreign consulate is beneficial where the welfare of a
foreign juvenile is concerned.4 And the Vienna Convention
represents the judgment of the United States, and 176 other
governments,5 that a consulate should be informed without
1 See Vienna Convention on Consular Relations, art. 37, Apr. 24, 1963, 21
U.S.T. 77, 102.
2 Neb. Rev. Stat. § 43-245 et seq. (Reissue 2004, Cum. Supp. 2006 & Supp.
2007).
3 See In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647
(2005).
4 See § 43-3801.
5 See Office of the Legal Advisor, U.S. State Dept., Treaties in Force 330-31
(Jan. 1, 2009).

delay when a guardian appears to be in the interests of a for-
eign minor.6
Which makes perfect sense. This case, for instance, might
have proceeded far differently had Guatemalan consular offi-
cials been appropriately and actively engaged in the process
from the beginning. The result in this case—a rather startling
departure from Maria’s rights and the children’s best interests—
might have been prevented. This case illustrates why DHHS,
and the juvenile court, should not regard § 43-3801 et seq. and
the obligations of the Vienna Convention as simply another
legal hoop to jump through on the way to termination. Rather,
the involvement of a foreign juvenile’s consulate should be
regarded as important to promoting the juvenile’s best interests.
The full participation of the consulate can help the juvenile
and the juvenile’s parents by ensuring that their interests are
represented, and can also assist DHHS, the guardian ad litem,
and the juvenile court by providing information and experience
helpful to determining the juvenile’s best interests.
In other words, the apparent miscommunication in this
case should not have happened, because if DHHS notifies a
foreign consulate of a pending proceeding and receives no
reply, DHHS should try again. And if DHHS does not, then
the guardian ad litem or the juvenile court should act to ensure
that the consulate is notified and involved. The children whose
interests are at issue in these proceedings deserve effective
notice and, hopefully, participation of their consulates. DHHS’
cursory compliance with what was apparently regarded as a
legal technicality falls short of the effort that should be made
to protect and promote a child’s best interests.
heAvicAn, C.J., and connolly and stephAn, JJ., join in this
concurrence.
6 See Vienna Convention, supra note 1.
1014 	277 NebRASkA RepORTS