In re Interest of LeVanta S.
295 Neb. 151
| Neb. | 2016Background
- Twin brothers (adopted, with fetal alcohol–related developmental disabilities) were adjudicated under Neb. Rev. Stat. § 43-247(3)(c) ("mentally ill and dangerous") in 2013 and placed in DHHS custody and out-of-home care.
- The juvenile court’s permanency objective throughout most of the case was reunification; parents participated intermittently in services and later obtained counsel.
- By September 2015 DHHS recommended concurrent planning (reunification with a concurrent guardianship plan); the court adopted a primary permanency objective of guardianship and denied the mother’s request for an evidentiary hearing.
- Parents appealed, arguing (1) the permanency change was not appealable, (2) a guardianship objective requires a § 43-247(3)(a) adjudication under § 43-1312.01, and (3) the change violated parental due process because parents had no opportunity to respond to allegations of unfitness in a (3)(c) case.
- The Nebraska Supreme Court held (1) the permanency-order change was a final, appealable order because it affected the parents’ substantial right (no prior adjudication of parental fitness in a (3)(c) case), and (2) the juvenile court exceeded its statutory authority by adopting guardianship as the permanency objective without a § 43-247(3)(a) adjudication; it reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the permanency-order change was a final, appealable order | Mother/father: changing permanency to guardianship irrevocably affects their right to raise children and is appealable | State: the order continues prior dispositional orders and is not final | Court: order was final/appealable — it affected a substantial parental right because parents had not had adjudication of fitness in (3)(c) case |
| Whether juvenile court could adopt guardianship objective without § 43-247(3)(a) adjudication | Parents: § 43-1312.01(1)(a) requires a (3)(a) adjudication before establishing guardianship; thus court lacked authority | State: § 43-285 authorizes the court to order permanency plans after (3)(a) or (3)(c) adjudications, so guardianship planning was permissible | Court: § 43-1312.01(1) is conjunctive and requires a (3)(a) adjudication; court exceeded authority in adopting guardianship in a (3)(c) case |
| Whether adopting guardianship objective violated due process (no evidentiary hearing) | Parents: (3)(c) petitions do not allege parental unfitness and parents lack statutory opportunity to respond; adopting guardianship without a (3)(a) adjudication and without hearing denied procedural due process | State: parents were present in court and thus had notice; DHHS and court provided review | Court: because it reversed on statutory-authority grounds, it did not decide the due-process claim on the merits, but emphasized parents in (3)(c) cases lack the formal opportunity to respond, making procedural protections salient |
Key Cases Cited
- In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (Neb. 2015) (standards for finality of juvenile permanency orders)
- Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (Neb. 2016) (testing when an order affects a substantial right)
- In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (Neb. 1999) (permanency plans and reunification principles)
- In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (Neb. Ct. App. 2009) (appeals from changes in permanency objectives)
- In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811 (Neb. Ct. App. 2013) (analysis of when permanency changes are appealable)
- In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (Neb. 1992) (procedural due process protecting parent-child relationship)
- In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (Neb. 2002) (permanency planning and reasonable efforts)