In re Interest of A.A.
951 N.W.2d 144
Neb.2020Background
- DHHS obtained ex parte emergency custody after the mother allegedly threatened a child with a knife; four children (including B.C.) were removed and placed in foster care. Joshua C. (legal father of B.C.) was not named or served in the initial proceedings and did not attend the temporary custody hearing.
- Joshua had acknowledged paternity, had lived with and parented B.C. for most of the child’s life, but had developed Guillain-Barré syndrome months earlier and was using a wheelchair and receiving home health care.
- Joshua moved to intervene and sought temporary physical placement of B.C.; after hearings the juvenile court allowed intervention but denied placement, finding Joshua “currently . . . unfit” largely because he had not cooperated with DHHS to create a safety/placement plan addressing his disability-related care issues.
- Joshua appealed the December 23, 2019 order denying placement. While that appeal was pending, the juvenile court accepted the mother’s no-contest plea and adjudicated B.C. as lacking proper parental care due to the mother’s fault or habits.
- The Nebraska Supreme Court reversed the denial of Joshua’s placement motion on procedural due process grounds (no notice or pleading that his fitness would be adjudicated), remanded with directions to grant temporary physical placement and develop a transition plan, but affirmed the adjudication order as within the juvenile court’s continuing jurisdiction.
Issues
| Issue | Plaintiff's Argument (Joshua) | Defendant's Argument (State/DHHS) | Held |
|---|---|---|---|
| Appealability of Dec. 23 order denying placement | The order is final and appealable; it adjudicated his custody rights | State: the order merely extended prior temporary custody and was not a new, appealable final order | Court: Dec. 23 denial was a final, appealable order because it was the first adjudication of Joshua’s right to temporary physical custody; appealable. |
| Subject-matter jurisdiction of initial ex parte/removal orders | Ex parte order and subsequent proceedings were void for procedural defects (timing, filings, missing affidavit) so juvenile court lacked jurisdiction | State: irregularities do not strip subject-matter jurisdiction; court had jurisdiction under §43-247 given the child’s condition | Court: Juvenile court had subject-matter jurisdiction; procedural irregularities in the ex parte order did not render later orders void. |
| Due process / parental preference — burden, notice, fitness showing | Joshua: parental preference entitles him to placement absent State pleading/proving he is unfit; he had no notice fitness would be litigated and should not bear burden to prove fitness | State: as temporary legal custodian, DHHS may ensure child safety and juvenile court may require cooperation to develop placement plans; court found current unfitness | Court: Reversed — State must give reasonable notice and plead factual bases when seeking to rebut parental preference; without notice the court violated due process; remand to grant temporary placement and craft transition plan. |
| Treatment of disability in fitness inquiry | Joshua: disability does not create presumption of unfitness; burden should not shift to disabled parent to prove fitness | State: court and DHHS properly required cooperative planning given safety concerns related to disability | Court: Disability alone does not presume unfitness; court erred to treat lack of a detailed plan as proof of unfitness; burden stays on State to prove unfitness. |
| Jurisdiction to adjudicate while appeal pending | Joshua: his appeal from placement order divested juvenile court of jurisdiction to accept plea and adjudicate B.C. | State: juvenile court retains continuing supervisory jurisdiction during appeals and must proceed with adjudication to advance reunification plans | Court: Juvenile court retained sufficient continuing jurisdiction to accept the mother’s plea and adjudicate; adjudication order affirmed. |
Key Cases Cited
- In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 110 (Neb. 2015) (parental preference protects nonoffending parent unless State proves unfitness)
- In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (Neb. Ct. App. 2002) (noncustodial parent must receive prompt notice of allegations that would rebut parental preference)
- In re Interest of Jaydon W. & Ethan W., 25 Neb. App. 562, 909 N.W.2d 385 (Neb. Ct. App. 2018) (parental preference requires State proof of unfitness before denying placement; transition plans permissible)
- Lehr v. Robertson, 463 U.S. 248 (U.S. 1983) (biological father’s rights depend on establishment of parental relationship)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (standard and procedural protections required when State seeks to sever parental rights)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due process balancing test for procedural requirements)
- Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (U.S. 1950) (notice must reasonably convey required information)
- In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (Neb. 2004) (juvenile court retains continuing jurisdiction during pendency of appeal)
- In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (Neb. 1997) (juvenile court cannot terminate parental rights during pendency of appeals beyond its continuing supervisory jurisdiction)