SUMMARY: When there are allegations against a custodial parent, the burden is on the state to allege and prove that the children should not be placed with other natural parent after the first 48 hours of emergency detention pending adjudication.
A petition filed July 23, 2001 alleged that William, father and custodial parent of Stephanie (DOB 4/14/1987), Skyler (DOB 10/1/1988), and Samantha (DOB 3/28/1991) had inappropriate sexual contact with his two daughters. Elizabeth, the children’s mother and noncustodial parent, had reported to the police the sexual contact when the children were visiting her. The petition was accompanied by an affidavit alleging Elizabeth did not have any legal custody rights to the children and there was no other appropriate individual with whom to place the children. The children were placed in the Department of Health and Human Service’s custody. At the detention hearing on July 30, 2001, Elizabeth’s lawyer informed the court of a divorce decree granting William primary custody subject to Elizabeth’s reasonable rights of visitation, but the decree was never entered into evidence. The judge refused to grant Elizabeth visitation because she was not a named party to the action. Elizabeth filed a motion to intervene on July 31, 2001 and was formally allowed to intervene at a hearing on Elizabeth’s motion for detention review on August 8, 2001. At this hearing, Elizabeth entered into evidence a district court order dated August 8, 2001 that granted her custody of the children. Elizabeth also testified she was living in a two-bedroom townhome with another daughter and her boyfriend of six months who was out on work release. The court denied Elizabeth’s motion to place the children with her.
The Nebraska Court of Appeals reversed the denial of placement with Elizabeth and directed the juvenile court to place the children with Elizabeth. First, the Court did have jurisdiction to hear an appeal from an order from a hearing that continues to keep custody from a parent. Additionally, the juvenile court should have considered the district court’s order granting Elizabeth custody on August 8, 2001, though this order did not have preclusive effect. Also, the juvenile court’s ex parte detention order relied on misleading affidavit because there was no information providing basis for the contention that Elizabeth had no legal custody and was not an appropriate person with whom to place the children. Importantly, the Court determined it is a denial of due process to deprive custody from a parent without any allegation or proof that the parent is unfit or unable to provide proper care for the children. Placement of children with one parent following divorce did not extinguish Elizabeth’s parental rights; Elizabeth was involved with the children and had been granted custody by a district court, thus the children should be placed with her.