SUMMARY: Failure to notify the appropriate foreign consulate as required by the Vienna Convention and N.R.S. 43-3804 is not a violation of the parent’s due process rights.
Antonio, DOB 10/04, and Gisela, DOB 7/06, are the children of Jose, a Mexican national. Antonio and his (and Gisela’s) half-sister Yelitza G., DOB 6/98, were removed from the home in March 2006. Gisela was removed at birth due to testing positive for amphetamine. On July 12, all three children were adjudicated as to the mother. On July 24, 2006, the State filed a petition as to Jose, with allegations of domestic violence against the mother. Jose was served by publication, and the children were adjudicated as to Jose on January 11, 2007. In July 2008, the mother filed and later withdrew a petition for a domestic violence protection order against Jose. On August 12, 2008, Yelitza called police after Jose hit the mother. Jose was arrested and subject to deportation. The mother filed a second petition on August 13th. There was no disagreement that the State provided no notice to the Mexican consulate. On May 11, 2009, the State filed a petition to terminate Jose’s parental rights. Up to that time, Jose had no contact with the caseworker, provided no current contact information and did not visit the children. After trial on August 3 and September 23 and 24, 2009, of which Jose was served notice on by publication, the juvenile court terminated Jose’s parental rights. Jose appealed, claiming the lack of notice to the consulate to be a violation of his due process and claiming several other errors that weren’t specifically argued in his brief.
The Nebraska Court of Appeals affirmed the termination of parental rights. As to consular notification, the Court of Appeals noted the finding in In re Angelica L & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009), that consular notification pursuant to N.R.S. 43-3804 was not a jurisdictional prerequisite but then clarified that Jose was only claiming failure to notify was a violation of his due process rights. Accordingly, the Court of Appeals held that failure to notify the Mexican Consulate was not a violation of Jose’s due process rights because a parent’s due process goes to adequate representation, notice of proceedings, and ability to cross-examine and participate in proceedings, and that Jose was afforded those rights. In this case, although Jose had to be served by publication, he was given notification and had the same counsel throughout the proceedings who appeared on his behalf. Futhermore, though, in addressing Jose’s failure to notify the court of his whereabouts, the Court of Appeals noted there is no showing Jose was prejudiced by failure to notify the consulate because as “demonstrated by his conduct…it was extremely unlikely he would have contacted the Mexican consulate at any time regarding these proceedings. 18 Neb. App. at 461. Finally, the Court of Appeals noted that “we cannot help commenting that DHHS should put in place procedures to ensure that the dictates of N.R.S. 43-3804 (Reissue 2008) are followed. 18 Neb. App. at 461. The Court of Appeals dismissed the remaining allegations after finding no plain error.