In re Interest of Joseph S. et al

Caselaw Number
21 Neb. App. 706
Filed On

SUMMARY: Evidence stemming from a voluntary agreement between the parent and DHHS cannot be used against the parent in support of terminating parental rights.

Kerri is the mother of Joseph, DOB 1/00, William, DOB 11/05, and Steven, DOB 12/06. Kerri was involved with DHHS and the juvenile court from March 2009 to November 2011, at which time the case was successfully closed. Kerri came to the attention of DHHS again in December 2011 and then in January 2012 based on reports that Kerri was using drugs and left the children with a relative. At that time, Kerri indicated she was willing to work with DHHS on a voluntary basis and signed a voluntary placement agreement putting her children in foster care. Kerri agreed to drug testing but did not consistently submit to UAs and had positive tests. In August 2012, as the voluntary placement period was ending, the decision was made to file in juvenile court. On August 9, 2012, the State filed a petition alleging the children to be within the meaning of N.R.S. 43-247(3)(a) and the children were removed. The allegations were based primarily on Kerri’s failures to comply during the voluntary case. Although UA testing was voluntary between August and December, Kerri submitted to a few, the results of which were negative. By September, visits had stopped due to Kerri’s inconsistency and the caseworker had difficulty contacting Kerri. On December 19, 2012, the State filed an amended petition to terminate Kerri’s parental rights. Trial was held on March 13, 2013. After trial, the court found the children within the meaning of N.R.S. 43-247(3)(a) but found they did not come within the meaning of 43-292(2) and that it was not in their best interests to terminate parental rights. The State appealed.

The Nebraska Court of Appeals affirmed the court’s order. Because the vast majority of evidence pertained to Kerri’s conduct during the voluntary case, the Court of Appeals directed its analysis to whether such evidence could be used at trial. It noted that procedural due process requires notice, reasonable opportunity to refute or defend, reasonable opportunity to confront opposing witnesses and present evidence, representation by counsel when required and a hearing before an impartial decision-maker. In this case, there was no evidence establishing that Kerri was made aware of the concerns about how her actions were putting her children at risk, that she was advised to consult with an attorney about the voluntary placement, that she was made aware that she could request the return of her children before 180 days but that doing so could result in a court filing, that she was represented by an attorney during the voluntary period, or that her actions could be used against her in court. The Court of Appeals also noted statutory process requirements once a case is filed – such as approval of the case plan and court findings on reasonable efforts – are not present in voluntary cases. It concluded that Kerri was denied due process of law and that her compliance during the voluntary case cannot be used as evidence to terminate her parental rights.