SUMMARY: An 18-day delay between the ex parte order and the detention hearing is “on the outer edge of reasonableness” but is not unreasonable. The evidentiary basis of an ex parte temporary detention order is not appealable because the ex parte order is not a final order.
On November 5, 2007, the State requested an ex parte order removing the children, April E., Rex E. and Alex E., from the home of their mother, Dixie, on the basis that the home was unsanitary. In the petition for removal, an affidavit of a DHHS caseworker was submitted that testified as to the contents of a police report indicating that the home contained feces, vomit and garbage on the floor, had nonfunctioning toilets and utilities, and lacked appropriate places for the children to sleep. The court granted the ex parte motion and ordered removal the same day. The children were removed and placed in a home 400 miles away. At the request of Dixie, a hearing on the issue of temporary custody was held on November 20, 2007. The DHHS caseworker again testified as to the contents of the police report. Dixie and her fiancé also testified as to the condition of the home, which were 2 trailers, and admitted that one trailer was uninhabitable and one trailer lacked heat. A second hearing was held on November 27, 2007, before which the caseworker had personally visited the trailers and testified in that regard, indicating one trailer was still uninhabitable. At some point, the children were placed in foster care in the same county as Dixie. Dixie appealed the November 20 and 27, court orders placing the children in continued state custody, challenging the caseworker’s statements as evidence and the delay between removal and the temporary custody hearing.
The Nebraska Court of Appeals held that because an ex parte temporary detention order is not a final order for purposes of appeal, it lacks jurisdiction to evaluate the evidentiary basis of that order. Therefore, it declined to decide whether the caseworker’s affidavit and/or testimony about the contents of the police report was properly considered.
The Court of Appeals also held that the 18-day delay between entry of the ex parte order removing the children from the home and the hearing on the issue of temporary custody “is on the outer edge of reasonableness”, but was not unreasonable.