SUMMARY: The newly enacted statute removing the presumption that the case plan is in the child’s best interests is applicable to an already-pending case because it only affects a procedural right. DHHS must offer reasonable efforts to a parent whose goal is reunification to correct the conditions leading to out-of-home placement even if the child is placed with a non-custodial parent.
Ethan M., DOB 1/00, was removed from the home of Daniel, the father, in 2005 and placed him into foster care. Over the next several years, there was a substantial amount of court involvement, including 4 appeals that mostly involved the court’s determinations of reasonable efforts. In 2006, Ethan was placed with his mother who moved to Nebraska from California. Daniel has never regained custody of Ethan. He began having weekly supervised, and then therapeutic, visits but visits stopped after the therapist became unavailable. Telephone calls were ultimately the only contact Daniel had with Ethan, and those also were reduced. Ethan expressed his desire not to have contact with Daniel, and the caseworker considered that wish as well at those of Ethan’s therapist when recommending her case plan consisting only of monthly contact between her and Ethan and no other services for the family. Hearings were held on June 7, July 2 and 7, 2010, regarding the case plan and on February 9, 2011, the juvenile approved the DHHS case plan, and finding reasonable efforts to reunify had been made and no evidence was submitted overcoming the presumption that the case plan was in the child’s best interests. The father appealed.
The Nebraska Court of Appeals reversed the decision. It first noted the statutory change to N.R.S. 43-285(2) where the presumption that the case plan was in the child’s best interests was removed from the statute in the 2011 legislative session. The Court of Appeals concluded that this change was procedural in that it alters the way an existing right is exercised and therefore applicable to pending cases including the present one. As to reasonable efforts, the Court of Appeals found that the relevant parent to which reasonable efforts need to be offered is Daniel since Ethan was initially removed from his care, even though Ethan is in the physical custody of the mother. It noted that the only service offered in the case plan was monthly visits between the caseworker and child, and that this case plan which offers “no goals or services for Daniel [to] correct, eliminate, or ameliorate the situation that led to Ethan’s adjudication and removal from Daniel’s home.” Supra at page 12. The Court of Appeals further noted that “the juvenile court ordered an alternative plan of reunification but there is no way for Daniel to achieve that goal when DHHS is not making any reasonable efforts to provide services or to even allow visitation.” Id.