870 N.W.2d 432
Neb. Ct. App.2015Background
- Child Danajah (b. Dec. 2006) was adjudicated a juvenile ward after her mother Robyn’s substance/child-safety issues; father Darneil intervened and later received placement of Danajah in 2012.
- Darneil had previously pled guilty to first-degree sexual assault of Robyn when she was a minor; record indicates Danajah was conceived as a result of that offense and Darneil was a SORA registrant.
- In Feb. 2014 Robyn was assaulted by Darneil’s girlfriend in front of Danajah; DHHS/NFC investigated but did not remove Danajah from Darneil long-term.
- Robyn moved to change Danajah’s placement back to her home; after deposition evidence and briefing the juvenile court granted the change, removed Danajah from Darneil’s home, and limited Darneil to supervised neutral-location visitation.
- The juvenile court noted concern about Darneil’s prior conviction and that Danajah had been conceived from that assault but did not cite or apply Neb. Rev. Stat. § 43-2933(2) during the hearing.
- Darneil appealed; the Court of Appeals considered whether § 43-2933(2) (which bars custody/visitation when a child was conceived by statutory rape under § 28-319) applies in juvenile-code proceedings and whether due process required notice/hearing before permanently terminating access.
Issues
| Issue | Plaintiff's Argument (Robyn) | Defendant's Argument (Darneil) | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 43-2933(2) (absolute bar to access when child was conceived by § 28-319 offense) applies to proceedings under the Nebraska Juvenile Code | § 43-2933 is part of the Parenting Act and may apply to child-custody/placement matters brought in juvenile court; court should consider it | Darneil argued the Parenting Act provision was not raised or applied and the juvenile code proceedings governed placement/visitation | Held: § 43-2933(2) may apply to juvenile-code cases when parenting functions are at issue; statutory framework and legislative findings support application |
| Whether a conviction under § 28-319(1)(c) produces an absolute, nondiscretionary bar to any custody/visitation/access under § 43-2933(2) | Robyn argued the conviction and conception link justify denying Darneil access under the mandatory language of § 43-2933(2) | Darneil challenged the retroactive invocation / lack of prior notice and hearing on that statutory consequence; emphasized existing parenting relationship and time he’d cared for Danajah | Held: Under the text of § 43-2933(2) a § 28-319 conviction that resulted in the child’s conception operates as an absolute bar; the court observed the statutory distinction from § 28-319.01 which is treated more discretely |
| Whether terminating Darneil’s access under § 43-2933(2) without specific findings and without the parties having raised the statute in the juvenile proceeding comported with due process | Robyn effectively sought immediate application of the statute to protect the child | Darneil argued he was entitled to notice and an opportunity to be heard before being deprived of parental access; the statute was not raised below | Held: Due process requires specific notice and an opportunity to be heard before permanently terminating parental access under § 43-2933(2); record lacked such findings/hearing |
| Remedy required where § 43-2933(2) was not litigated below and a liberty interest is implicated | Robyn sought immediate enforcement of placement change and supervised visitation order | Darneil sought reversal or remand for proper proceeding on § 43-2933(2) and due-process protections | Held: Court remanded for an evidentiary hearing and specific findings regarding the applicability of § 43-2933(2) and due-process protections before permanently barring access |
Key Cases Cited
- In re Interest of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (Neb. 2014) (standard for de novo review in juvenile cases; trial-court witness-observation weight)
- In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (Neb. 2014) (plain-error doctrine articulated)
- State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (Neb. 2012) (SORA procedures implicate liberty interests; procedural due process required before imposing registration)
- Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (Neb. 2013) (parental rights as constitutionally protected liberty interest in child-rights context)
- State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565 (Neb. 2010) (Parenting Act may govern when custody/parenting functions are at issue even if case originated under a different statutory scheme)
- In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (Neb. 2014) (appellate courts need not decide unnecessary issues)
- In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398 (Neb. 2015) (cross-references between Juvenile Code and Parenting Act definitions and interplay in child-custody analyses)