SUMMARY: It is not unconstitutional for the guardian ad litem to perform both the investigatory duties of a guardian ad litem and bring and try a motion to terminate parental rights as authorized in Neb. Rev. Stat. section 43-272.01(2). As a ground for termination under 43-292(6), the rehabilitation plan must be reasonably related to reuniting the parent with child and not necessarily to DHHS’ overall permanency objective.
The children, Kantril, then 6, and Chenelle, then 4, were removed after being taken to the emergency room on September 7, 1995, by their mother Carlotta who believed that someone living in the attic was inserting drugs in one child’s rectum and both children’s ears. Carlotta tested positive for cocaine and it was later determined that she suffered from schizophrenia. The children were placed with their noncustodial father. The children were adjudicated under Neb. Rev. Stat. section 43-247(3)(a) on March 8, 1996, and Carlotta was ordered to complete a rehabilitation plan which ordered her to visit the children, attend weekly therapy, take medication, resume drug treatment, obtain random drug screenings, among other things. Carlotta did not attend mental health therapy, refused to join a halfway house program, did not participate in other psychiatric and drug treatment, tested positive for cocaine and visited the children only 7 times in 1997. On January 16, 1998, the guardian ad litem filed a motion to terminate Carlotta’ parental rights. After trial, the juvenile court terminated Carlotta’s parental rights and Carlotta appealed.
The Nebraska Supreme Court affirmed the termination of parental rights. It first noted its holding in In re Interest of Constance G., 247 Neb. 629 (1995) that only the children’s situation is at issue at the adjudication phase in rejecting Carlotta’s argument that the court lacked jurisdiction because no allegations were made regarding the noncustodial father. The Supreme Court also rejected Carlotta’s argument that Neb. Rev. Stat. section 43-272.01(2), which lists the duties of a guardian ad litem, is unconstitutional because it gives too much power to the guardian ad litem, namely the dual powers to investigate and to bring an action to terminate parental rights. In applying the Mathews v. Eldridge balancing test of (1) private interests, (2) risk of error and (3) government interest, the Supreme Court found that the risk of error (that is, an erroneous termination) is no different than if the county attorney would bring the termination action since the guardian ad litem would still be able to investigate the case and submit its findings in the form of reports or testimony to the court. The Supreme Court also held that the ground for termination in Neb. Rev. Stat. section 43-292(6) of failure to comply with a reasonable provision material to the rehabilitative plan only requires that the plan be reasonable related to reunification of the parent with the child, not with the intended permanency plan of DHHS, which in this case may have been custody with the father. Finally, the Supreme Court held that termination was in the children’s best interests because Carlotta made little effort to visit the children or comply with the rehabilitation plan.