SUMMARY: Because the petition only alleged behavior by the mother’s boyfriend while the children were in his care, proper notice was not given to the mother that her behavior would be at issue in the case.
Kathryn is the mother of Angel, DOB 1/08, Tyerca, DOB 11/08 and Zekyel, DOB 10/11, who were removed from her care on July 21, 2012, after the children revealed Kathryn’s boyfriend subjected them to harsh punishment. The affidavit stated that Kathryn’s boyfriend, Andrew, required the children choose two of three punishments - slap, spank or choke – when misbehaving and the children were found with multiple bruising. An order on July 23, 2012, was entered approving the removal but the kids were returned to live with the mother and a family support worker. Petitions were filed on July 24, 2012, alleging that Tyerca and Angel were within the meaning of 43-247(3)(a) for lacking proper parental care “by being slapped, spanked or choked by [the mother’s] custodian, Andrew…while in his care” and that Zekyel was “by living in a home where child abuse was occurring.” The children were eventually removed and the court continued department custody and denied the mother’s motion to return placement to her. After a contested adjudication hearing, the court dismissed the juvenile petitions after finding the petitions did not provide Kathryn with proper notice and due process because they did not “allege specific facts giving her notice as to what it is that she did or didn’t do.” The State appealed.
The Nebraska Court of Appeals affirmed the court’s dismissal. It noted that N.R.S. 43-274(1) requires a petition to specify which section of 43-247 is alleged and to set forth facts verified by affidavit. It noted its holding in In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012), that cases falling under 43-247(3) were not like general criminal pleadings but required higher specificity that “give[s] a parent notice of the bases for seeking to prove that the child is within the meaning of 43-247(3)(a),” Id. at 837, and that this is a requirement of due process. The Court of Appeals further noted that the parent must be properly notified so that they can defend themselves in the proceedings. In this case, the petition did not provide notice to Kathryn of her behavior that was resulting in the removal of the children. Rather, it only included allegations as to Andrew when the children were in his care.