In re Interest of Damien S.

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In re Interest of Damien S.

Caselaw No.
19 Neb. App. 917
Filed on
Tuesday, June 26, 2012

SUMMARY: The rights advisement to a parent only needs to be given prior to the adjudication or plea, but it is good practice to advise a parent at the earliest possible time. Continued custody was proper where the mother continued to have issues with mental health, housing, domestic violence and drug use, and the father was not present in the child’s life.

Damien, DOB 5/11, was born to Jessica and Jerry, who had their parental rights to two other children involuntarily terminated in December 2010. After birth, a caseworker began visiting Jessica (Jerry was incarcerated). Jessica was living with her boyfriend, had been struggling with managing her bipolar disorder and had been using marijuana regularly but accepted intensive family support. The caseworker next received a call from the boyfriend in June 2011 that Jessica was again unstable but after meeting with her was able to form a medication plan. On September 29, 2011, Jessica and her boyfriend had a physical altercation while Jessica was holding Damien, and Jessica admitted this was not the first domestic violence incident. She had also had chronic issues of domestic violence with Jerry. Jessica was left homeless and planned to move in with a friend who was currently involved in the juvenile court system as well. Jerry had been released from jail on September 13, 2011, but had made no contact. 3a and termination petitions were filed on September 30 and October 6, 2011, based on domestic violence and prior terminations. At the contested Protective Custody Hearing on October 12, 2011, the caseworker testified that Jessica’s choices of relationships placed her children at risk for harm, that Jerry has not been involved in the child’s life and was violent with Jessica when she was pregnant and that Jessica does not currently have a suitable home. The court did not advise Jessica of her rights. At the conclusion of the hearing, the court continued temporary custody of the children with DHHS. Jessica and Jerry both appealed.

The Nebraska Court of Appeals affirmed the court’s order. It first held that the rights outlined in N.R.S. 43-279.01 do not necessarily need to be read to a parent at the first hearing, even though doing so would be good practice. Noting language in N.R.S. 43-279.01(2), In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001)(concluding 43-279.01(2) “means that a juvenile court should accept a parent’s in-court admission only after informing the parties as to the nature of the proceedings and the possible consequences of adoption”) and In re Interest of N.M. and J.M., 240 Neb. 690, 696, 484 N.W.2d 77, 81 (1992) (“adequate notice…must be given in adjudication hearings before the juvenile court may accept an in-court admission”), the Court of Appeals concluded the rights advisement would only have to be read prior to a parent’s plea to the allegations in the petition. Finally, in reviewing the decision of continued custody, the Court of Appeals held that evidence of prior involuntary terminations, Jessica’s unstable housing and employment, Jerry’s lack of contact with Damien and lengthy imprisonment, Jessica’s ongoing issues with mental health and drug use, and the parents’ history of domestic violence were sufficient to establish that continued detention was necessary for the child’s welfare.