SUMMARY: If reasonable efforts have been made to reunify the child with a parent, placing the child out-of-state with another parent does not automatically create a situation not conducive to reunification; however; a concurrent goal of adoption should be changed to “change of custody” if placement with another parent occurs.
Corey W., DOB 9/97, Carissa W., DOB 6/99, and Cassidy S., DOB 1/02, came under the jurisdiction of the juvenile court around December 2008 due to their exposure to domestic violence between the mom, Christy, and her live-in boyfriend, Ty. Christy was ordered on February 25, 2009, to have no contact with Ty or allow the children to have contact, among other requirements. On April 23, 2009, DHHS filed a motion for immediate custody of the children after Christy left the state without making appropriate arrangements for child care, drove with the children without a driver’s license and left the children at playgrounds while visiting Ty in jail. The children were placed in a non-relative foster home. At a review on November 30, 2009, the court found that reasonable efforts had been made to achieve reunification, specifically listing the services, and noted the permanency plan to be reunification with a concurrent plan of adoption. It also ordered reasonable visitation with the 2 fathers, Rocky (Corey and Carissa) and Timothy (Cassidy). On April 1, 2010, Rocky filed for placement of all three children. Over summer of 2010, the children spent time with Rocky and Cassidy spent time with Timothy. At a hearing on August 10, 2010, the caseworker testified that both fathers’ homes were appropriate and the children did not object to living there. After the hearing, the court again found reasonable efforts had been made, kept the same permanency plan and ordered the placement change to the fathers’ homes. Christy appealed on the basis that placing the children out of Nebraska made reunification a practical impossibility.
The Nebraska Court of Appeals affirmed the placement changes. It distinguished In re Interest of Ethan M., 15 Neb. App. 148, 158, 723 N.W.2d 363, 371 (2006) (where a child placed with the mother in California was overturned and the court directed to approve placement in a home “conducive to reunification”) because reasonable efforts to reunify had not yet been made with the father. In this case, the children had been out of home 14 months and the mother was provided with many services during that time but still had not progressed enough to allow reunification. The Court of Appeals rejected the argument that Ethan M. created a hard rule against out-of-state placement with a natural parent when there is a goal of reunification with the other parent. Furthermore, the Court of Appeals noted the presumption of placement with a biological parent in In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996). Finally, however, the Court of Appeals noted that placement with the biological fathers would preclude adoption remaining as a concurrent goal and ordered that it be changed to “change of custody.”