In re Interest of Marquee N.
30 Neb. Ct. App. 862
| Neb. Ct. App. | 2022Background
- Child (born Aug. 2015) was removed after DHHS received reports of drugs in mother’s home and a hair test showing methamphetamine and marijuana in the child; State filed petition under § 43-247(3)(a) on June 16, 2021.
- Ex parte order placed the child with DHHS and required father (Marquee Sr.) to wear a drug patch; father had an existing paternity/custody order in separate district-court case (parenting time stayed pending juvenile case).
- DHHS initially did not place the child with father because of an apparent protection order and unstable housing; the protection order was later dismissed.
- DHHS workers had little or no in-person assessment of father; petition’s allegations were directed at mother, not father.
- County (juvenile) court denied father’s request for placement, ordered supervised visitation, required a drug patch and an urgent needs assessment; father appealed.
- Court of Appeals vacated the denial of placement and the drug-patch requirement, holding the State failed to prove father unfit and the juvenile court lacked authority to impose testing pre-adjudication; remanded for further proceedings (now between two parents because child later placed with mother).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of detention hearing | Delay between ex parte order (June 16) and evidentiary hearing violated due process | Hearing was continued at father’s request | No reversible error; father requested continuance (invited error) |
| Denial of placement with father / parental unfitness | State failed to plead or prove father unfit; parental preference favors biological parent | Placement denial justified by safety concerns and best-interests analysis | Vacated: State did not prove father unfit; parental-preference presumption required placement (remand for further proceedings) |
| Finding that reasonable efforts were made to preserve/reunify family | Father argued efforts were inadequate | State asserted reasonable efforts were made | Court did not decide (unnecessary after vacating placement order) |
| Order requiring father to wear drug patch | Father argued lack of notice, lack of adjudication/jurisdiction, and no evidentiary basis | State justified testing as protective measure | Vacated: juvenile court lacked jurisdiction to order services pre-adjudication; no notice or evidentiary showing that patch related to petition’s allegations |
Key Cases Cited
- In re Interest of A.A. et al., 307 Neb. 817 (Neb. 2020) (parental-preference doctrine and notice requirements when State seeks to rebut parental fitness)
- In re Interest of R.G., 238 Neb. 405 (Neb. 1991) (parents’ due-process right to a prompt detention hearing after ex parte removal)
- In re Interest of Lakota Z. & Jacob H., 282 Neb. 584 (Neb. 2011) (proof standard for overcoming parental preference)
- In re Interest of J.S., A.C., and C.S., 227 Neb. 251 (Neb. 1987) (rehabilitative-plan requirements; materiality and evidentiary foundation)
- In re Interest of Devin W. et al., 270 Neb. 640 (Neb. 2005) (juvenile court acquires jurisdiction over parents only upon adjudication)
- In re Interest of Meley P., 13 Neb. App. 195 (Neb. Ct. App. 2004) (juvenile court lacked authority over parents before adjudication)
- In re Interest of Rylee S., 285 Neb. 774 (Neb. 2013) (rehabilitation plan must be reasonably related to adjudication grounds)
- Mahlendorf v. Mahlendorf, 308 Neb. 202 (Neb. 2021) (party cannot complain on appeal about error it invited)
- In re Interest of Kane L. & Carter L., 299 Neb. 834 (Neb. 2018) (parental liberty interest and limits on ex parte removal)