SUMMARY: Fourteen days between removal and the protective custody hearing is on the brink of unreasonableness but does not violate due process. The protective custody hearing order is a final, appealable order but the ex parte order is not.
On August 10, 1990, R.G., an infant, was removed from the mother after law enforcement discovered that the mother left the home for over 2 hours while her 9-year-old child babysat her 3-year-old child. An ex parte order was entered on the same day. Additional evidence suggested that R.G. had black eyes, and was observed to have had them on prior occasions, and that the mother initially agreed to drug testing but evaded the caseworker at the hospital. On August 17, 1990, a petition pursuant to Neb. Rev. Stat. section 43-247(3)(a) was filed and on August 24, 1990, the court held the protective custody hearing. On August 27, 1990, the court entered an order continuing custody with DHHS. The mother appealed, alleging that the ex parte and protective custody orders violated her constitutional rights, that strict rules of evidence should have applied and that the guardian ad litem exceeded her statutory role. The State claimed that the orders were not final and therefore not appealable.
The Nebraska Supreme Court upheld the lower court’s order. It held that, in determining whether an order is appealable, it must affect a substantial right of the parent which is shown by the object of the order and length of time over which the parent’s relationship with the child may be reasonably expected to be disturbed. In rejecting the mother’s claim of due process violation, the Supreme Court held that “the effect of the ex parte order on the mother’s liberty interest is tempered by its short duration…[and] by the fact that the order plays no part in determining the propriety of continuing further temporary custody in the department until adjudication.” 238 Neb. at 417. Using the same reasoning, the Supreme Court concluded that the ex parte order is not final and thus not appealable. However, the Supreme Court found that after a Protective Custody order is entered, the adjudication hearing may not occur for several months thus affecting the mother’s interest for a long period of time; therefore, due process requires providing the parent with the opportunity to challenge the Protective Custody order in the form of an appeal.
As to the 14-day delay between removal and the Protective Custody hearing, the Supreme Court held that the mother’s rights were not violated, noting she received proper notice and was able to visit the children between removal and the hearing. However, the Supreme Court noted that “the 14 days elapsing between the entry of the ex parte order and the hearing poise the procedures employed in this case on the brink of unreasonableness.” 238 Neb. at 423.
Finally, the Supreme Court held that relaxed rules of evidence apply in the same way they do for dispositional hearings pursuant to Neb. Rev. Stat. section 43-283, and that the guardian ad litem’s role in leading the presentation of evidence during the hearing was proper pursuant to Neb. Rev. Stat. section 43-272.01(2)(e).