SUMMARY: In adjudication proceedings joint representation does not deny due process and ineffective assistance of counsel is not an available claim if appointed pursuant to statute.
Heather and two siblings were adjudicated to be within the meaning of §43-247(3)(a) after abuse allegations were proved by a preponderance of evidence. Parents appealed and argued they received ineffective assistance from counsel, their due process rights were violated because one attorney represented them jointly and the evidence was insufficient to support the court’s decision. On appeal, the Supreme Court of Nebraska concluded that ineffective assistance of counsel was not an available claim in the proceeding because counsel was appointed pursuant to statute. Similarly the court explained that appointment was not required under the constitution because the proceeding was not criminal.
The court then proceeded to analyze the assignment of error in light of due process requirements. The court concluded that the parents were not denied due process given that the proceeding was an adjudication and that the mother’s individual interests were adequatly represented by counsel because their situation was similar and she was given the opportunity to testify. Finally, the court analyzed whether the order for adjudication was supported by sufficient evidence. The court found that the evidence did support the courts order because the petition was very detailed, the facts in the petition were confirmed by testimony from the children, the state patrol investigator and the medical doctor and photographs showing the injuries were admitted in evidence. The parents gave opposing testimony but the appellate court gave weight to the observations of the lower court during testimony. The court affirmed the adjudication order.