In re Interest of LeVanta S.
887 N.W.2d 502
Neb.2016Background
- Twin brothers (adopted) with developmental disabilities (fetal alcohol syndrome) were adjudicated in 2013 under Neb. Rev. Stat. § 43-247(3)(c) as "mentally ill and dangerous" and placed in DHHS custody.
- Parents (Patricia B. and Calvin S.) were present at adjudication but were not represented at initial disposition hearings and did not appeal the adjudication.
- For ~2–3 years the juvenile court maintained a permanency objective of reunification while ordering services and supervised visits; children were eventually placed in out-of-home care and were reportedly doing well.
- At a September 2015 review hearing the juvenile court adopted a permanency objective of guardianship (without an adjudication under § 43-247(3)(a) addressing parental fitness); the written order made guardianship the primary objective and imposed additional parental requirements.
- Parents appealed, arguing the court lacked authority to adopt guardianship without a (3)(a) adjudication and that doing so (and denying evidentiary process) violated their due process rights; the Nebraska Supreme Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the permanency-order changing objective to guardianship is a final, appealable order | Parents: order affects their substantial right to raise children and is appealable | State: order is not final/appealable | Court: order was final and appealable because it affected parents' substantial right without prior adjudication of parental fitness |
| Whether court could adopt guardianship objective in a § 43-247(3)(c) case | Parents: § 43-1312.01 requires a (3)(a) adjudication before guardianship/permanency-guardianship may be adopted | State: § 43-285 authorizes court to order DHHS to prepare permanency plans after (3)(a) or (3)(c) adjudications, including guardianship | Court: statutory text and scheme require a (3)(a) adjudication for guardianship; court exceeded authority in (3)(c) case |
| Whether parents' due process rights were violated by adoption of guardianship objective without hearing | Parents: lacked notice/ability to respond to allegations about fitness and consequences (guardianship) — procedural unfairness | State: parents were present in court and thereby informed of rights | Court: due process concerns are implicated in (3)(c) cases because parents have no statutory right to respond; court reversed on statutory ground and did not decide merits of due process claim |
| Whether mother was entitled to an evidentiary hearing before changing permanency objective | Mother: requested continuance and evidentiary hearing which was denied | State: court denied request as discretionary | Court: remanded after concluding guardianship adoption was unauthorized; did not resolve the denial-of-hearing claim on the merits |
Key Cases Cited
- In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015) (discusses when changes to permanency objectives constitute final, appealable orders)
- In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999) (permanency plans and adoption of permanency objectives in juvenile cases)
- In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002) (permanency plans and reasonable efforts toward reunification)
- In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992) (procedural due process protections for parents in child custody proceedings)
- Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016) (criteria for when an order affects a substantial right)