SUMMARY: An order approving a transition plan of the child from the foster parents to the grandparent and proposed guardian is final and appealable. Legislative changes to 43-285(2) shifted the burden of proof in showing the case plan is in the child’s best interests from the parent to the State and, in this case, the State did not do so.
Karlie, DOB 8/07, was removed at birth on a positive drug test. The mother relinquished her parental rights. Karlie was initially placed with foster parents but, after the father intervened and paternity was established, was placed with the father in August 2008. Because the father had a late night shift, Karlie often stayed with Martha, her grandmother. In March 2009, the father tested positive for meth and Karlie at first stayed with Martha but was then removed based on an unrelated allegation against an uncle that was eventually shown to be false. Karlie was placed with the same foster parents and, in November 2009, Martha moved to have Karlie placed with her and be named as her guardian. During the father’s termination trial and the hearing on Martha’s motions, the father died. On March 31, 2011, the court entered an order finding Martha to be a reputable citizen of good moral character and requiring DHHS to submit a transition plan to Martha. The State appealed but the appeal was dismissed for lack of a final order. At a June 16, 2011, DHHS presented a transition plan on increasing visits resulting in Karlie living permanently with Martha. The court ordered the transition plan be adopted but didn’t appoint Martha as guardian. The State appealed.
The Nebraska Supreme Court affirmed the order. In addressing whether the order was final and appealable, the Supreme Court compared the substantial rights of the parent vs. the State under In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998), finding that the State’s substantial rights were not affected with a denial of continued detention, the filing of an abuse and neglect proceeding, or the denial of a request for temporary custody because it did not (1) confer any custody right on the State, (2) end or foreclose a phase in the proceeding or (3) affect a then-existing right of the State. The Supreme Court then found these factors to be present in this case in that the order permanently moving Karlie to live with her grandparents did affect the Department’s right as guardian to recommend where Karlie should live and because the order effectively termination the dispositional phase of the proceedings. It also approved of the reasoning in In re Interest of Tanisha P. et al., 9 Neb. App. 344, 611 N.W.2d 418 (2000) that the State could appeal the placement of an adjudicated child in the home of her grandmother and guardian because “once the child is adjudicated, the State’s interest in protecting the child becomes greater and more necessary.” Karlie D., at 590.
The Nebraska Supreme Court then agreed with the Court of Appeals holding that the language in LB 648 from the 2011 legislative session in effect shifted the burden of proof to the State in showing that DHHS’ proposed case plan is in the child’s best interests. As to best interests, the Supreme Court found there to be no evidence establishing that the grandmother was unable to care for Karlie or that Karlie’s behavioral problems were caused by contact with her, and discounted a therapist’s relationship assessments between Karlie and the foster parents and grandparents due to potential fluidity of the results. Finally, it noted the preference for placement with blood relatives both in statute and DHHS rules and regulations.