SUMMARY: Neb. Rev. Stat. section 43-285(2), which provides that a party must prove by a preponderance of evidence that the proposed DHHS case plan is not in the child’s best interests in order for the court to disapprove it, is not unconstitutional as applied in this case because the mother never objected to it. The court should not put its court orders in such detail as to services that it renders any alteration of them based on change of circumstance impossible. The court can consider the opinions of expert witnesses when making the best interests determination.
J.H., DOB 7/24/90, was voluntarily placed in protective custody in September 1990 and found to be suffering from low birth weight, severe diaper rash and gag reflext. His mother was 18-years-old and found by the caseworker to have little knowledge of how to care for an infant. The mother’s attendance at visitation was sporadic and interaction with J.H. minimal, and she left the state for Texas for 3 months on May 10, 1991 having little contact with the child during that time and not visiting him until August 28, 1991. The petition to terminate parental rights was filed on November 15, 1991, and the court entered an order after trial on January 14, 1992, terminating the mother’s parental rights. The mother appealed.
The Nebraska Supreme Court affirmed the termination of parental rights. It rejected her challenges to the dispositional hearing and to Neb. Rev. Stat. section 43-285(2), which provides that a party must prove by a preponderance of evidence that the proposed DHHS case plan is not in the child’s best interests in order for the court to disapprove it, finding that she raised no objection at the time. To the mother’s claim that the court should not have delegated such issues as the nature and frequency of counseling being ordered to DHHS, the Supreme Court held that DHHS exists to make such detailed determinations and that the court order should be flexible enough to allow more experienced parties the ability to tailor the plan.
As to the grounds to termination, the Supreme Court criticized DHHS’ adversarial and uncooperative approach with the mother but held that the mother is ultimately responsible for following through with the rehabilitation plan, which she did not do. The Supreme Court also held that opinions from witnesses are not required, but that it is “certainly within the court’s discretion to ask for recommendations from ‘experts’ on the case.” 242 Neb at 919.
The Supreme Court further held although that the juvenile court erred in finding that the mother violated the protective order prohibiting release of confidential records except for trial purposes by providing records to a psychologist for an evaluation, the mother suffered no prejudice because the psychologist’s report did not contain new information that would have substantively contributed to a different result. Finally, the Supreme Court held that evidence of the termination of the father’s parental rights is not relevant to the mother’s case and should not be allowed.