Summary:
This is an appeal from the Lincoln County Court sitting as a juvenile court. Marquee N. (Marquee Sr.) appeals the juvenile court’s order continuing placement of his minor child outside the home, declining to place the child with Marquee Sr., and ordering Marquee Sr. to participate in drug testing.
A juvenile petition was filed alleging that Marquee Jr. was in a situation dangerous based on the actions of his mother, Elizabeth. An ex parte motion for temporary custody was filed the same day as the juvenile petition and indicated that marijuana, accessible to Marquee Jr. and his two siblings, was found on Elizabeth’s kitchen table during a welfare check. While the allegations in the petition were solely against Elizabeth, the affidavit in support of temporary custody included information pertaining to Marquee Sr., specifically that he had a lengthy criminal history, including convictions for domestic assault. The juvenile court granted the ex parte motion, placing temporary custody of Marquee Jr. with DHHS. The order for temporary custody also ordered Marquee Sr. to submit to wearing a drug patch to be monitored by DHHS.
Marquee Sr. timely appeals the juvenile court’s order. Marquee Sr. assigns that the juvenile court erred in (1) failing to timely hold an evidentiary hearing regarding the removal of Marquee Jr. in violation of Marquee Sr.’s right to due process, (2) failing to return Marquee Jr. to him when no allegations had been made regarding his care of the child, (3) finding that reasonable efforts had been made to preserve and reunify the family, and (4) failing to afford him due process prior to ordering him to submit to wearing a drug test patch.
Timeliness of Initial Hearing
Marquee Sr. assigns that the juvenile court failed to timely hold an evidentiary hearing regarding the continued detention of Marquee Jr. in violation of Marquee Sr.’s right to due process. The Court of Appeals reminds us that an ex parte order authorizing temporary custody with DHHS is permitted because of its short duration and the requirement of further action by the State before custody can be continued. But the State may not, in exercising its parens patriae interest, unreasonably delay in notifying a parent that the State has taken emergency action regarding that parent’s child nor unreasonably delay in providing the parent a meaningful hearing. Therefore, following the issuance of an ex parte order for temporary immediate custody, a prompt detention hearing is required in order to protect the parent against the risk of an erroneous deprivation of his or her parental interests.
The Nebraska Supreme Court has previously found that a mother’s due process rights were not violated by a 14-day delay between the entry of an ex parte order and that of a detention order when she was given an opportunity to be heard at the detention hearing and was allowed to visit her children in the interim. But the court cautioned that this 14-day delay between the ex parte order and detention hearing was “on the brink of unreasonableness.” In the present case, the detention hearing was held over 30 days after the ex parte order was entered. However, the detention hearing was continued upon Marquee Sr.’s request because he needed additional time to obtain evidence necessary for the hearing. Because the hearing was continued on Marquee Sr.’s motion, the Court of Appeals found no error in its timeliness. On appeal, a party cannot complain of error which the party has invited the court to commit.
Placement of Marquee Jr. and Reasonable Efforts.
Marquee Sr. argues that the juvenile court erred in refusing to place Marquee Jr. with him because the State failed to affirmatively show that he was unfit. The Supreme Court has held in situations where a child is removed from one parent’s home pursuant to the juvenile code that the juvenile court’s discretion regarding placement pending disposition is limited by Nebraska’s “‘parental preference doctrine,’” which governs the rights of the other parent against whom no allegations have been made. The parental preference doctrine holds that in a child custody controversy between a biological parent and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to the custody of the child. Under the parental preference doctrine, unless the State affirmatively shows a parent is unfit or has forfeited the right to custody, due regard for the parent’s natural right to the custody of a child requires that a parent be presumptively regarded as the proper guardian.
When the allegations of a petition for adjudication invoking the jurisdiction of the juvenile court are against one parent only, the State cannot deny the other parent’s request for temporary physical custody in lieu of a foster care placement unless it pleads and proves by a preponderance of the evidence that the other parent is unfit or has forfeited custody or that there are exceptional circumstances involving serious physical or psychological harm to the child or a substantial likelihood of such harm. In the present case, there were no allegations that Marquee Sr. forfeited his right to custody or that there were any of the requisite exceptional circumstances. Therefore, the State was required to prove that Marquee Sr. was unfit in order to deprive him of the custody of his child. Additionally, prior to the evidentiary detention hearing, the State was required to give Marquee Sr. notice that it was challenging his fitness. Procedural due process generally requires that notice be given of such a nature as to reasonably convey the required information.
The Court of Appeals notes that at the detention hearing, the State placed its focus on Marquee Jr.’s best interests. Both the initial assessment worker and current caseworker opined that placing Marquee Jr. with Marquee Sr. at that time was not in the child’s best interests, and in its arguments to the court, the guardian ad litem likewise expressed concern about moving the child from his current placement with his grandmother and siblings, arguing that allowing Marquee Jr. to remain in his current placement was in his best interests. However, this type of analysis does not come into play until after there has been a finding of parental unfitness or forfeiture. Additionally, while the best interests of the child remain the lodestar of child custody disputes, a parent’s superior right to custody must be given its due regard, and absent its negation, a parent retains the right to custody over his or her child.
Without sufficient evidence proving that Marquee Sr. was unfit, the parental preference doctrine required placement of Marquee Jr. with Marquee Sr. Accordingly, the Court of Appeals vacated the juvenile court’s order denying placement of Marquee Jr. with Marquee Sr. and impliedly finding him unfit, and remanded the cause with directions for further proceedings. However, during the pendency of the appeal, Marquee Jr. was removed from his foster home and returned to Elizabeth. Therefore, upon remand, the issue before the juvenile court is not placement of the child as between the State and a parent, but rather placement of the child as between two parents. Having vacated the court’s decision declining to place Marquee Jr. with Marquee Sr., the Court of Appeals found it did not need to address Marquee Sr.’s argument that the court erred in finding that reasonable efforts had been made to preserve and reunify the family. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
Order for Drug Testing
Marquee Sr. argues that the juvenile court erred in ordering him to submit to drug testing by wearing a drug patch to be monitored by DHHS. Prior to adjudicating a child under § 43-247(3)(a), the juvenile court lacks jurisdiction over the parties. When a juvenile court adjudicates a minor under § 43-247(3), it also obtains exclusive jurisdiction over the parent, or stated another way, an adjudication under the Nebraska Juvenile Code brings all the parties identified in § 43-247(3) and (5) under the juvenile court’s exclusive jurisdiction. Thus, the juvenile court acquires jurisdiction over a juvenile and his parents when it finds conditions that fit § 43-247(3)(a) and adjudicates the child as a juvenile within the meaning of § 43-247(3)(a).
The Court of Appeals has previously observed that § 43-247 does not grant the juvenile court jurisdiction over the parent, guardian, or custodian of a juvenile who has merely been alleged to be within the ambit of § 43-247; rather, the juvenile court does not obtain jurisdiction over a juvenile’s parent, guardian, or custodian until a finding of adjudication. Accordingly, because the adjudication is the operative event that confers jurisdiction of the court over the parents and the children, prior to the adjudication, the juvenile court has no authority to order the parents to participate in services or to submit to treatment. Therefore, at the time the juvenile court in this case entered the temporary detention order and the continued detention order, both of which occurred prior to entry of an order adjudicating Marquee Jr. under § 43-247(3)(a), it had no authority to order Marquee Sr. to wear a drug patch.
In addition, the court’s orders requiring Marquee Sr. to wear a drug patch were made without notice to him that the court may order services and without holding an evidentiary hearing regarding the propriety of any services. The orders were made without any evidence that this provision was reasonably related to the condition on which the allegations in the petition were based. Specifically, there were no allegations or evidence presented that Marquee Sr. had a drug problem or that drug testing would correct, eliminate, or ameliorate a condition that resulted in adjudication.
In short, the juvenile court lacked jurisdiction over Marquee Sr. at the time it ordered him to wear a drug patch because Marquee Jr. had not yet been adjudicated under § 43-247(3)(a). The court, therefore, had no authority to order him to participate in services at that time. Additionally, the court required that Marquee Sr. submit to drug testing without notice that it was contemplating doing so or holding an evidentiary hearing, at which to receive evidence that this requirement was appropriate and necessary. Finally, the Court of Appeals found there was no evidence that this service was material to the allegations in the petition.
For the reasons stated above, the Court of Appeals vacated the juvenile court’s order declining placement with Marquee Sr. and remanded the cause with directions for further proceedings and vacated the order requiring participation in drug testing.