SUMMARY: Where proper rights advisements are not made at adjudication, the termination petition is treated as those filed under N.R.S. 43-292(2) without prior juvenile court involvement, requiring rights advisements at the termination stage. In this case, termination was improper because no rights advisement was given.
The six children of Elizabeth were removed from her home on June 29, 2008, after Elizabeth was unable to provide proper supervision and maintain a clean home, and a petition under N.R.S. 43-247(3)(a) was filed on July 1, 2008. The children were returned to Elizabeth’s home on July 18, 2008 with a safety plan and intensive family preservation, and a First Appearance Hearing was held on September 16, 2008, where Elizabeth did not have counsel but an interpreter appeared by phone. The court advised Elizabeth of her rights and asked if she understood. Elizabeth replied that she did not understand “the petition against me because it is not [indiscernible].” Page 2. The court then appointed counsel and entered a denial. An adjudication hearing was held on December 4, 2008, where Elizabeth was represented by counsel and an interpreter appeared by phone. Elizabeth admitted that the children were in a dangerous situation in June 2008 and the court adjudication all six children under N.R.S. 43-247(3)(a). Disposition/permanency hearings were held on January 27, 2009, July 21, 2009, and January 26, 2010. By July 21, 2009, all children had been removed from Elizabeth’s home and put in various placements. On April 23, 2010, the State filed a motion to terminate Elizabeth’s parental rights to all children pursuant to N.R.S. 43-292(2), (6), and (7). Trial on the TPR motion was held on October 17 and 27, 2011, and November 1, 2011. On January 30, 2012, the court terminated Elizabeth’s parental rights, not specifically stating the grounds for termination. Elizabeth appealed.
The Nebraska Court of Appeals reversed the court’s order. It first noted the parties agreed the reasons for termination were N.R.S. 43-292(2), (6) and (7). The Court of Appeals rejected Elizabeth’s claim of failure to give a rights advisement at the adjudication phase since Elizabeth did not appeal within 30 days. However, it noted the holding in In re Interest of Brook P. et al., 10 Neb. App. 577, 586, 634 N.W.2d 290, 298 (2001), where when rights advisements are not given at adjudication, the subsequent TPR proceedings are treated as if no prior adjudication occurred. The Court of Appeals therefore treated the case as an original action under 43-292(2). It then found that Elizabeth was not advised of her rights or the possible consequences of termination after the State filed its TPR motion and therefore concluded she was not provided with due process rights.