SUMMARY: When the State seeks temporary custody of a child as to a second parent, even if non-custodial, a detention (i.e., Protective Custody) hearing must be held even if a prior detention hearing was held as to the custodial parent.
Amari G, DOB 5/10, was removed from his mother at birth. The State filed a petition to adjudicate Amari as to the mother, Kenyatta, and to terminate her parental rights. The juvenile court entered an ex parte order for temporary custody and a detention (i.e., Protective Custody) hearing was held on May 28, 2010. At this hearing, Kenyatta did not resist detention. The father, Marcus was present but not part of the petition. On August 18, 2010, the State filed a petition to adjudicate Amari as to Marcus based on his incarceration and failure to care for Amari but did not seek to change custody. At a detention hearing on August 25, 2010, the court advised Marcus of his rights but issues of detention and placement were not discussed. On November 8, 2010, Marcus filed a motion to dismiss the petition on the basis that no detention hearing had been held. On November 29, 2010, the State filed a motion for temporary custody of Amari to exclude Marcus’ home. The court granted the motion and a hearing on the issue was held on December 15, 2010. At the hearing, the court held that a detention hearing had been held on May 28th when Marcus was present and denied the motion to dismiss. Marcus appealed.
The Nebraska Court of Appeals reversed and remanded the juvenile court’s decision. The Court of Appeals first held that neither the November 29th ex parte order or the denial of Marcus’ motion to dismiss were final, appealable orders. At to the issue of a detention hearing, the Court of Appeals found that once the State took action to have custody of Amari as to Marcus, Marcus should have been provided with certain rights that include a meaningful hearing with an opportunity for the parent to be heard. The Court of Appeals found that Marcus was not given this opportunity at the December 15th hearing and that the juvenile court therefore erred in ordering that custody of Amari remain with DHHS. Finally, it remanded the case to juvenile court with orders to dismiss the petition but also to hold a custody hearing since Marcus was not the custodial parent and had not requested custody of Amari.