Summary: Care and custody with DHHS is appropriate for the children during the pre-adjudicative phase where the custodial parent is alleged to be unfit and there is no evidence the non-custodial parent is unfit, even when the children are placed with the non-custodial parent.
On February 13, 2014, a petition was filed to adjudicate Kathryn S. and Lauren S. as children under § 43-247(3)(a), alleging that they lacked proper parental care due to the fault and habits of their mother, Devi S. Due to a recent divorce, Devi S. shared custody of the children with David S., a resident of Iowa. In January 2014, David retrieved the children from their mother’s house and took them to Iowa, where he enrolled them school, and filed for emergency custody. The custody hearing was set for March 2014. In the meantime, David’s attorney advised that he return the children to their mother. Devi picked the children up from school in Iowa and returned to Nebraska on February 12, 2014. An order was issues on February 13, 2014 for DHHS to take immediate custody of the children and for placement in foster care, or other appropriate care excluding the maternal home. On February 21, 2014 David filed a motion for placement, alleging to be the natural father and placement with him was in the best interest of the children, that he had filed a complaint in intervention, and that the children had been with him since DHHS took custody. On February 27 a brief detention hearing was held, attended by David and counsel. An order was issued that noted the parties had until March 27 to file an answer to the intervention and continued the detention hearing and motion. Additionally, the order stated that custody should remain with DHHS for placement in a neutral foster home and supervised visits for both parents.
On March 7, 2014, both David and Devi, along with the other parties, appeared before the court with counsel. Devi was advised of her rights and asked if she resisted continued detention with DHHS. David was informed of his right to intervene, but not asked if he resisted the continued detention. The corresponding order found that the state requested continued detention and that there was no resistance. Further, that continued detention was in the best interest of the children and that both parents should have visitation. On March 26, David filed a Motion for Placement. On April 9 the court sustained David’s motion to intervene and was made him a party to the action. A hearing on the Motion for Placement was held on June 2, 2014. David sought to have DHHS relieved of the responsibility of the children and that they be place with him. DHHS agreed that placement should be with David, but that it was not in the best interest of the children to relieve DHHS of the care and custody because it would make rendering the necessary services more difficult. The court ordered the children be placed with David but that care and custody remain with DHHS.
The Nebraska Court of Appeals affirmed. On appeal, David asserted that the court erred in failing to place custody of children with him without evidence that he was unfit and that continued custody with DHHS violated his rights to substantive and procedural Due Process. The Court first considered whether they had jurisdiction to hear the appeal. They determined that the June 5th order was a final, appealable order and that they had jurisdiction; his failure to appeal from the March 10th order did not preclude an appeal from the June 5th order because he was not yet a party on March 10th. The decision to place the children with David but retain care and custody with DHHS was not an error at the pre-adjudicative phase. David did not allege that he should be awarded care and custody. The placement with David was uncontested, but DHHS argued for further investigation before transfer of care and custody. David is not precluded from filing for custody in the appropriate channels. Similarly, the Court found no Due Process violation.