11/16/2009

IN THIS ISSUE

1. Policy Spotlight: No Policy Spotlight this issue
2. Court Opinions: In re Interest of Jade S. et al.; In re Interest of Ethan M.; In re Interest of Allen G. et al.; In re Interest of Nylang M. et al.; In re Interest of Hope L. et al.
3. Legislative Update: Child Welfare Interim Studies
4. Announcements: Appleseed Blog

POLICY SPOTLIGHT

No Policy Spotlight this issue

COURT OPINIONS

In re Interest of Jade S. et al., A-09-344
http://j.mp/6N9Ykh
Decided September 29, 2009 (Not designated for permanent publication)

In this case, the mother appealed a juvenile court order denying her motion to withdraw a voluntary relinquishment of parental rights with respect to her minor children. She alleged that she had been induced to sign the relinquishment in exchange for a contractual agreement with the minor children’s prospective adoptive parents and that the prospective adoptive parents had since refused to follow through. She challenged the juvenile court’s order denying her motion without conducting an evidentiary hearing. The Court of Appeals determined that her motion included allegations that were tantamount to asserting that her relinquishment of parental rights was procured by coercion or fraud and was not signed intelligently and voluntarily. The Court of Appeals noted that while a voluntarily entered relinquishment of parental rights is not revocable, if a relinquishment is procured by threats, coercion, fraud, or duress, it may be vacated. The Court of Appeals found that these assertions could not be resolved without an evidentiary hearing and reversed and remanded the decision. In doing so, the Court of Appeals held that the record was insufficient to allow the juvenile court to rule on the mother’s motion because the court ruled on the motion at a review hearing prior to the scheduled hearing on the motion at which neither the mother nor her attorney were present. In addition, the juvenile court ruled on the motion without any evidence in the record concerning the relinquishment, its acceptance, or the allegations that it was not voluntary. These factors also made it impossible for the Court of Appeals to address the merits of the State’s assertion that the juvenile court lacked jurisdiction over the mother necessary to address the merits of the motion.

In re Interest of Ethan M., 18 Neb. App. 63 (2009).
http://j.mp/6abk4g
Decided October 13, 2009

Ethan is the child of Daniel and Theresa. In a divorce decree, Daniel was given primary physical custody of Ethan. After the divorce, however, due to allegations of abuse against Daniel’s wife, Ethan was placed with Theresa with a finding that reasonable efforts to reunify with Daniel did not have to be made. The Court of Appeals reversed the order in 2006. Weekly visitation between Ethan and Daniel was established and then eventually only limited phone visitations occurred. Ultimately, DHHS submitted a case plan to the juvenile court in January 2009 which recommended that the care, custody, and control of Ethan be placed with Theresa and that the case be dismissed. After a hearing in which the court heard Daniel’s objec­tion to the plan, the court adopted the DHHS case plan and dismissed the case. Daniel appealed.

The Court of Appeals reversed the juvenile court’s order and remanded the case. Although not raised by any of the parties, the Court of Appeals held that the juvenile court’s order (adopting DHHS’s case plan placing Ethan in the custody of Theresa and dismissing the case) did not modify the previous child custody determination (which placed Ethan in the custody of Daniel). A juvenile court does have jurisdiction to modify custody pursuant to § 43-364. However, in order to modify custody, the juvenile court should have conducted a custody modifi­cation proceeding in the manner that a custody modification proceeding is normally conducted in district court (a complaint to modify custody is filed, the court holds a custody modification proceeding, and the moving party must show a material change in circumstances and that modification is in the child’s best interest). However, there was no proceeding that remotely resembled a cus­tody modification proceeding. Instead, the juvenile court’s adoption of DHHS’s case plan placing Ethan in the custody of Theresa and dismissing the case could best be characterized as a dispositional order. By dismissing the case, the juvenile court terminated its jurisdiction over the juvenile case and lacked the power to enforce its previous dispositional orders. Thus, the sole remaining order controlling child custody was the divorce decree, which placed primary physical custody of Ethan with Daniel, a result far from the intentions of either DHHS or the juvenile court. Because the juvenile court’s final order had the opposite of its intended effect, it constituted plain error.

In re Interest of Allen G. et al., A-09-127 through A-09-129, A-09-227, A-09-228
http://j.mp/8ohgzi
Decided November 3, 2009 (Not designated for permanent publication)

Five children ranging in age from three to eleven were removed from the home of their mother, Tabitha, in September 2006, due to allegations of domestic violence and excessive force in disciplining. Candy is the father of three of the children and lived in Montana until he returned to Nebraska after he learned that his children had been placed in the custody of DHHS. Thereafter, Candy’s three children resided either with Candy or with Candy’s mother. In January 2007, the children were adjudicated as to Tabitha’s admissions only. In March 2007, Tabitha was ordered to attend parenting classes, attend family therapy, attend domestic violence education classes, secure safe and stable housing, and attend supervised visitation with the children. The State presented no evidence concerning Candy other than to mention that his three children were placed with Candy’s mother. At a review hearing in January 2008, the court formally ordered Candy to obtain housing, participate in a substance abuse evaluation, follow the recommendations of the evaluation, and attend visitations with his children on a regular basis. In March 2008, a permanency planning hearing was held which revealed that Tabitha had not been attending visitation with the children and had not made any progress toward reunification. There was no evidence presented concerning Candy. At the close of the hearing, the county court changed the permanency plans to adoption, canceled Candy’s and Tabitha’s visitations with the children, and found that “reasonable efforts are no longer necessary.” The State filed a motion for termination of Tabitha’s and Candy’s parental rights in July 2008. At the conclusion of the termination hearing in January 2009, the juvenile court found that the State proved by clear and convincing evidence that grounds for termination of Candy and Tabitha’s parental rights existed. Both Candy and Tabitha appealed.

On appeal, both parents assigned as error that the juvenile court conducted the termination proceeding without the presence of the guardian ad litem (GAL). The Court of Appeals began its analysis of this argument by explaining that because Candy and Tabitha did not object to the juvenile court’s decision to hold the termination hearing without the presence of the guardian ad litem, it would examine the decision under a plain error analysis. Upon its review, the Court of Appeals concluded that the court’s decision did not constitute plain error because although § 43-272.01 requires the GAL to be present at all hearings, the statute only addresses the duties of the GAL and does not address the court’s authority to conduct a hearing without the GAL’s presence. The Court of Appeals also noted that § 43-272.01 provides that “Nothing in this section shall operate to limit the discretion of the juvenile court in protecting the best interests of a juvenile who is the subject of a juvenile court petition” and determined that the children had been in out of home placement for two years and that holding the termination hearing in a timely manner was in the children’s best interests.

However, the Court of Appeals reversed the order of the juvenile court terminating Candy’s parental rights on the basis of best interests. The Court of Appeals stated that Candy’s opportunities for compliance with the case plan were limited, his participation in the juvenile proceedings was voluntary, and the State did not file a petition alleging any wrongdoing on Candy’s part prior to the filing of the motion to terminate his parental rights. The Court of Appeals found that Candy was only provided with approximately two months to achieve the goals of his case plan and that it was not clear from the record what progress Candy made on the case plan during those two months although there was some evidence that Candy had made some progress with respect to housing and substance abuse issues. The Court of Appeals concluded that the State failed to present clear and convincing evidence to demonstrate that termination of Candy’s parental rights was in the children’s best interests and reversed the order of the juvenile court terminating Candy’s parental rights, and remanded for further proceedings.

Regarding the parental rights of Tabitha, the Court of Appeals stated that the evidence showed that despite almost two years of efforts by DHHS and the juvenile court, Tabitha had been unable or unwilling to rehabilitate herself. She failed to adequately comply with the county court’s orders, failed to consistently attend visitation with her children, and failed to make progress toward achieving reunification. Accordingly, the Court of Appeals affirmed the order of the juvenile court in finding that the evidence clearly and convincingly established that termination of Tabitha’s parental rights was in the children’s best interests and also that statutory grounds for termination existed.

In re Interest of Nylang M. et al., A-09-505
http://j.mp/794jmD
Decided November 10, 2009 (Not designated for permanent publication)

Parents Paul and Nyalauk appealed from an order of the Separate Juvenile Court of Douglas County, terminating their parental rights to seven children. Paul is the father of four of the children, and Nyalauk is the mother of all seven. In January 2006, the State filed a motion for temporary custody and a petition to adjudicate all seven of the children. The juvenile court issued an order removing the children from Nyalauk’s home. After a hearing, the court adjudicated all seven children with respect to Nyalauk. In March 2008, the juvenile court adjudicated the children with regard to Paul after a hearing. In May 2008, the State filed a petition to terminate Nyalauk’s and Paul’s parental rights to the children. During a two-day hearing in November 2008, a specialist with DHHS stated that neither parent has had any contact with the children since June 2008. She testified that in her opinion, termination of Nyalauk’s and Paul’s rights was in the best interests of their children. She stated that Nyalauk had been unable to show that she can parent the children because she refused to see the children and refused to cooperate with the services the Department provided. She stated that Paul had also been unable to show he can parent the children and that Paul had abandoned the children by refusing to visit them. In April 2009, the juvenile court terminated Nyalauk and Paul’s parental rights.

The Court of Appeals found that the evidence overwhelming established that both Nyalauk and Paul had substantially and continuously or repeatedly neglected and refused to give their children necessary parental care and protection. Specifically, the Court of Appeals cited inconsistent visitation by the parents, poor progress in meeting goals, and the fact that the parents later moved to Seattle and had inconsistent phone visitation or other contact thereafter. The caseworker also expressed concerns because the parents repeatedly refused to speak to the children in English and refused a translator, although the younger children did not speak the parents’ native language. The Court of Appeals also affirmed on best interests based on the testimony at trial. Paul argued that the juvenile court erred in failing to hold a detention hearing following its order which granted the State’s motion for temporary custody. The Court of Appeals determined that Paul was aware of the proceeding and was given notice of the detention hearing but failed to appear and therefore the juvenile court’s order was not in error. Finally, the Court of Appeals rejected Paul’s argument that the juvenile court erred in finding that reasonable efforts to reunify were not required. The Court of Appeals, citing In re Interest of Brittany S., 12 Neb. App. 208, 670 N.W.2d 465 (2003) and In re Interest of DeWayne G. and Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002), reiterated that the reasonable efforts requirement is incorporated into termination of parental rights cases only when the ground for termination is § 43-292(6) related to the failure of reasonable efforts to correct the condition leading to the determination. In this case, the state sought termination of Paul’s parental rights based on § 43-292(1), (2), and (7) and therefore reasonable efforts were not required.

In re Interest of Hope L. et al., 278 Neb. 869 (2009).
http://j.mp/6isA84
Decided November 13, 2009

Ben and Joanna are the parents of Hope, Sam, Xavier, and Gracie. All children were removed from Ben and Joanna’s custody as a result of their arrests for the repeated disconnection of Xavier’s feed­ing tube while he was hospitalized at Children’s Hospital in Omaha and the state later petitioned to terminate parental rights. Several doctors testified that the best interests of Hope, Sam, Xavier, and Gracie would be served by terminating the parental rights of Ben and Joanna. The three older children were all diagnosed with factitious dis­order by proxy, also known as Munchausen syndrome by proxy. Experts opined that to reunify the children with Ben and Joanna would put all the children at risk for further health issues, including death. The juvenile court concluded that reunification efforts were not required, that statutory grounds to terminate existed, and that termination was in the children’s best interest. Both parents appealed.

On appeal, the Supreme Court first determined that the juvenile court did not err in admit­ting evidence of Joanna’s mental health and medical issues experienced prior to the birth of the children because the chal­lenged evidence was relevant to what happened to Hope, Sam, and Xavier. The Supreme Court also affirmed the juvenile court’s decision that it was not necessary for the State to make reasonable efforts to reunify the family. The Supreme Court reiterated that reasonable efforts are only required when termination is sought under 43-292(6), which was not the case here. The Supreme Court then turned to the statutory grounds for termination and found that Ben and Joanna “substantially and continuously or repeatedly neglected and refused to give . . . necessary parental care and protection” to the children under § 43-292(2) in that they repeatedly sought unnecessary medical attention for their chil­dren and reported false symptoms and test results to medical staff, resulting in the performance of unnecessary pro­cedures and surgeries. In addition, Ben and Joanna were convicted of felony child abuse for withholding food from Xavier’s feeding tube to the point that he entered a starvation state. The Supreme Court also noted that the facts supported termination under 43-292(9) in that Ben and Joanna subjected Hope, Sam, and Xavier to aggravated circumstances, specifically chronic abuse. Based upon its review of the record, the Supreme Court also concluded that Ben and Joanna were unfit, and that it was in the best interests of the children that Ben’s and Joanna’s parental rights be termi­nated. Finally, the Supreme Court rejected Joanna’s argument that the GAL should have been removed because he submitted a sentencing request in her criminal case. She argued that asking for the maximum sentence of five years would have had the effect of terminating her parental rights because she would not have had an opportunity to comply with the case plan. However, there was no evidence in the record regarding the GAL’s statement or from the hearing on the motion to disqualify the GAL and therefore the Supreme Court did not further consider the assignment of error.

Legislative Action

Child Welfare Interim Studies

Appleseed is monitoring a number of interim studies introduced this year relating to child welfare. Click here for a list of child welfare interim studies. In particular, Appleseed is currently working with Sen. Campbell’s office on an interim study examining the implementation of the federal Fostering Connection to Success and Increasing Adoptions Act. Appleseed is also working with Sen. Coash and the Judiciary Committee on an interim study examining the central register process. We hope to have the input and involvement of a broad range of advocates and stakeholders on both of these studies. Please contact us about to share your thoughts and experiences!

ANNOUNCEMENTS

Appleseed Blog

Appleseed recently launched a blog where you can read daily updates about our work to positively impact low-income families, immigrants, children in foster care, and access to health care. Child welfare posts generally appear every Wednesday. Stop by and check it out! Read, comment, and share your own stories with us at: http://www.neappleseed.org/blog

We invite you to contact us if Appleseed can be of any assistance on systemic issues that arise in your practice. I may be reached at shelvey@neappleseed.org or (402) 438-8853, ext. 106.

Sarah Helvey
Program Director / Staff Attorney
Child Welfare System Accountability Program

For more information about the Child Welfare System Accountability Project, please visit: http://www.NeAppleseed.org/children

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