SUMMARY: Where there are two parents with separate homes, the children can be removed from the home of the unfit parent at the adjudication hearing without prejudicing the other parent’s rights.
Terry G., father of Amber G. and siblings, appealed order approving the case plan of the Department of Social Services recommending permanent guardianship of his four minor children. Father was given visitation rights and the mother sole custody after divorce. Children were removed from the care of their mother and adjudicated abused and neglected under §43-250. Testimony showed concerns about the father as a placement possibility and that guardianship would be in the best interest of the children. The father claimed the juvenile court lacked jurisdiction for adjudication when there was no allegation against the father and that it is unconstitutional to disregard that rights of the noncustodial parent. He also assigned error to the court finding all reasonable efforts had been made.
On appeal, the Supreme Court of Nebraska stated that the placement of a child in the custody of one parent as opposed to the other in a divorce action does not extinguish the noncustodial parent’s right to custody, nor does it constitute an adverse determination of the fitness of the noncustodial parent in that or other proceedings. Similarly, the court explained that the question of whether the father was fit or unfit to have custody did not arise and should not have arisen until the dispositional phase and found jurisdiction was proper. The court then addressed the issue of parental preference toward biological parents. The court stated that while it is true that a parent has a natural right to the custody of his child, the court is not bound as a matter of law to restore a child to a parent under any and all circumstances. Absent an affirmative finding of unfitness, the father is entitled to the custody of his children. Here, the court clearly considered placement of the children with either biological parent, found on the record before it that placement with either parent would not be in the best interests of the children, and determined that the father was unfit to have custody. The order approving the case plan was affirmed.