In re Interest of Joseph S. et. al

Caselaw Number
288 Neb. 463
Filed On

SUMMARY: Because there was no evidence of coercion during the mother’s voluntary case with DHHS, due process requirements were not triggered prior to the filing of a petition. Due process protections after the filing of the petition were sufficient, and there was a prima facie case for N.R.S. 43-292(2).

Kerri is the mother of Joseph S, DOB 1/00, William S., DOB 11/05, and Steven S., DOB 12/06. Kerri has been involved with DHHS since 2009. Her children were in foster care in 2009 to early 2010 and then were returned to foster care around July 2010 for one year. The court case was closed in November 2011 but in January 2012 DHHS received reports that Kerri was leaving the children unsupervised and might be using drugs. DHHS began a voluntary case with Kerri but Kerri struggled, testing positive for amphetamines three times, and failing to consistently comply with UAs, attend visits and attend therapy. At a final drop-in before the children were returned in August 2012, the home was found to be in poor condition, and the State filed a court petition on August 9, 2012. After August, Kerri was hard to locate, had sporadic service compliance and did not attend regular visitation. In December 2012, the State filed an amended petition to terminate pursuant to 43-292(2).At trial on March 13, 2013, the juvenile court dismissed the termination grounds, finding the State failed to present a prima facie case. The State appealed. The Court of Appeals affirmed the order, finding that due process was violated during the voluntary case and evidence during that voluntary period could not be used.The State appealed.

The Nebraska Supreme Court reversed the Court of Appeals decision and remanded the case to juvenile court.The Supreme Court focused on the due process provided to Kerry once the court petition had been filed, and not the legal protections provided to her during the voluntary case. It did acknowledge that coercive tactics during a voluntary case could trigger due process requirements prior to the filing of a petition. However, in this case, it found no evidence of coercive tactics, noting that there was no evidence Kerri received an ultimatum or that her compliance was not voluntary. The Supreme Court finally noted that the State made a prima facie case that the requirements of N.R.S. 43-292(2) were met based on the mother’s history of drug use and improper supervision, and directed the juvenile court to use all evidence presented to consider whether there was clear and convincing evidence for termination.