SUMMARY: The juvenile court properly exercised its emergency jurisdiction over Maxwell while one parent was incarcerated and the other parent was in alcohol treatment. Although there was a South Dakota custody order, the Nebraska court could continue its jurisdiction so long as the emergency persisted. However, the Nebraska juvenile court must immediately communicate with the South Dakota court before proceeding further. Also, the Nebraska court must refrain from making any permanent custody determinations unless and until the South Dakota court declines jurisdiction or fails to take appropriate action.
In February 2003, Maxwell’s father was granted custody, with visitation to the mother, pursuant to a divorce decree entered in Minnehaha County, South Dakota. The decree provided Maxwell’s mother with supervised visitation and further provided that the mother “could not remove Maxwell from Minnehaha or Lincoln Counties, South Dakota, without prior written consent of” the father or a court order. After the decree was entered, Maxwell’s father committed a parole violation which returned him to the South Dakota State Penitentiary until 2009. Maxwell’s mother brought Maxwell with her to Bellevue, Nebraska where they lived with family. In January 2005, Maxwell’s mother went to the hospital after consuming a large amount of alcohol, after which she decided to enter an alcohol treatment program. Maxwell’s mother stated that there was no one to care for Maxwell, and thus Maxwell was placed in emergency foster care. On January 21, 2005, the juvenile court granted a motion for temporary custody, and DHHS took custody of Maxwell. No mention was made of Maxwell’s father until a proceeding on June 27, 2005. A court order on September 19, 2005, continued custody of Maxwell with DHHS, but court stated that Maxwell could be placed with mother once she obtained housing. The permanency objective was reunification. In October 2005, Maxwell’s father filed a motion to dismiss, alleging that Nebraska court lacked subject matter jurisdiction and stating that Maxwell had not been abandoned by his father.
The Court of Appeals determined that Nebraska was proper in exercising emergency jurisdiction over Maxwell in Nebraska. The juvenile court did have emergency jurisdiction over Maxwell and was able to make temporary custody placements of the child. This emergency jurisdiction “does not cease to exist simply upon notification of another court’s custody determination….[S]o long as an emergency with regard to Maxwell continued to exist, the court retained emergency jurisdiction powers.” However, even though the juvenile court has properly exercised emergency jurisdiction powers, “the South Dakota court retains continuing jurisdiction to make any permanent changes in custody.” The juvenile court, must therefore immediately communicate with the South Dakota Court, and may only “render a permanent custody order [if] the South Dakota court affirmatively declines jurisdiction or fails to take appropriate action.”
Further, Maxwell’s father’s assertion that the motion to dismiss should have been granted because he was denied a speedy adjudication was without merit. Although § 43-278 “provides that an adjudication hearing shall be conducted within 90 days after a petition is filed, this could has held that [the statute] is directory, not mandatory.” In this case, the adjudication occurred beyond the 90 day period, but without objection from the father’s counsel. Therefore, there was no abuse of discretion with respect to this claim.
The father also claimed that the adjudication order should be reversed because he was not property informed of his rights under § 43-279.01. However, this contention was without merit, because according to the plain language of the statute, the parent must actually be present in court for this statute to apply. Since Maxwell’s father did not appear in court, the statute was not triggered.