In re Interest of Carmelo G. ( 2017 )

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www.nebraska.gov/apps-courts-epub/
07/07/2017 12:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF CARMELO G.
Cite as 296 Neb. 805
In re I nterest of Carmelo G., a child
under 18 years of age.
State of Nebraska, appellee, v.
Latika G., appellant.
___ N.W.2d ___
Filed June 2, 2017. No. S-16-981.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Constitutional Law: Due Process. The determination of whether the
procedures afforded an individual comport with constitutional require-
ments for procedural due process presents a question of law.
3. Appeal and Error. On a question of law, an appellate court reaches a
conclusion independently of the court below.
4. Constitutional Law: Parental Rights. The proper starting point for
legal analysis when the State involves itself in family relations is always
the fundamental constitutional rights of a parent.
5. Parental Rights. The interest of parents in the care, custody, and control
of their children is perhaps the oldest of the fundamental liberty interests
recognized by the U.S. Supreme Court.
6. Parental Rights: Due Process. The fundamental liberty interest of
natural parents in the care, custody, and management of their children is
afforded due process protection.
7. Juvenile Courts: Parental Rights. Neb. Rev. Stat. § 43-248(2) (Cum.
Supp. 2014) allows the State to take a juvenile into custody without a
warrant or order of the court when it appears the juvenile is seriously
endangered in his or her surroundings and immediate removal appears
to be necessary for the juvenile’s protection. However, the parent retains
a liberty interest in the continuous custody of his or her child.
8. Parental Rights: Notice. The State may not, in exercising its parens
patriae interest, unreasonably delay in notifying a parent that the State
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IN RE INTEREST OF CARMELO G.
Cite as 296 Neb. 805
has taken emergency action regarding that parent’s child nor unreason-
ably delay in providing the parent a meaningful hearing.
9. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the Separate Juvenile Court of Douglas County:
Vernon Daniels, Judge. Order vacated, and cause remanded
for further proceedings.
Thomas C. Riley, Douglas County Public Defender, and Zoë
R. Wade for appellant.
Donald W. Kleine, Douglas County Attorney, and Paulette
Merrell for appellee.
Kate E. Placzek, of Law Office of Kate E. Placzek, guardian
ad litem.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
On January 5, 2016, the State filed a petition in the separate
juvenile court of Douglas County against Carmelo G.’s bio-
logical parents, Latika G. and Deontrae H. The State alleged
that Carmelo lacked parental care by reason of the fault or
habits of Latika and Deontrae. On that same day, January 5,
the juvenile court filed an ex parte order in which it granted
the State’s motion for temporary custody of Carmelo with
the Department of Health and Human Services (DHHS). A
protective custody hearing was held on January 21, but it was
continued over many dates until it was concluded on August
2. On September 19, the juvenile court filed an order in which
it ordered that Carmelo remain in the temporary custody of
DHHS until further order of the court. Latika appeals. Because
we conclude that Latika’s procedural due process rights were
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IN RE INTEREST OF CARMELO G.
Cite as 296 Neb. 805
violated, we vacate the September 19 order and remand the
cause for further proceedings.
STATEMENT OF FACTS
Carmelo was born in July 2015. Latika is Carmelo’s biolog-
ical mother, and Deontrae is Carmelo’s biological father. Prior
to the filing of the petition in the present case, Carmelo was
under the jurisdiction of the juvenile court from July 2015
through December 2, 2015, in case No. JV 15-1285. In that
earlier case, the State filed a petition against Latika pursuant
to Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014). In its
protective custody order filed July 15, the juvenile court noted
that the State had requested continued protective custody of
Carmelo by DHHS and that Latika did not resist continued
protective custody. The court ordered that Carmelo was to
remain in the temporary custody of DHHS, with placement
to exclude the parental home. The court stated that returning
Carmelo to Latika’s care at that time would be contrary to
his health and safety due to exigent circumstances, including
the facts set forth in the affidavit for removal in that case,
“as well as the mother’s use of illegal drugs which impairs
her ability to adequately provide for the child.” It was also
noted in case No. JV 15-1285 that Latika suffered from men-
tal health issues, including bipolar disorder, schizophrenia,
and depression.
On December 2, 2015, an adjudication hearing was held in
case No. JV 15-1285. In an order filed on December 3, the
juvenile court dismissed that case, stating that based on the
evidence presented, it could not find that Carmelo was within
the meaning of § 43-247(3)(a) as pled. Carmelo was returned
to Latika’s home on December 2.
Kathleen Aburumuh, an employee of Nebraska Families
Collaborative (NFC), was the family permanency specialist
assigned to work with Latika during the pendency of the
initial filing against Latika in case No. JV 15-1285. During
the pendency of that case, Aburumuh met with Latika a
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minimum of once per month from August through December
2015 and Aburumuh worked with Latika on her case plan,
which included addressing substance abuse and domestic vio-
lence issues.
Starting on December 3, 2015, following the dismissal
of case No. JV 15-1285, Aburumuh continued to work with
Latika through Aburumuh’s position on the noncourt team
at NFC. Aburumuh testified that a noncourt team consists of
caseworkers “who primarily work with families where the
safety threat is not large enough to remove the children, but
there are still safety threats present.” As a member of the non-
court team, Aburumuh would work with the family to resolve
those safety threats.
Aburumuh testified that as of December 3, 2015, there were
threats to the child present in Latika’s home. Aburumuh testi-
fied that the threats to Carmelo’s well-being were reflected
in the facts that there had been two calls to law enforce-
ment regarding domestic violence in October and November
2015 and that Latika had recently tested positive for cocaine.
Aburumuh further testified that at that time, NFC felt that
because Latika “was already involved in services and hadn’t
quite completed them, and this was a sudden turn in the case,
that nobody was kind of expecting it, that it would be to her
benefit to continue with services.”
When Aburumuh met with Latika at Latika’s home on
December 3, 2015, Aburumuh presented Latika with a
safety plan. Aburumuh testified that safety plans are put into
place when it has been determined that without services,
the child at issue is at risk of removal. The safety plan
Aburumuh presented to Latika on December 3 included,
inter alia, that Latika was to participate in random drug test-
ing, to continue to participate in and complete outpatient
treatment, to participate in domestic violence classes, and
not to have contact with Deontrae. The December 3 safety
plan further stated that Latika’s brother would move into the
home effective December 4 to help Latika. The plan provided
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that Latika would allow random visits from her mother and
her sister.
Latika’s mother and Carmelo were present at the meeting
on December 3, 2015. Latika’s brother was briefly present,
but Aburumuh did not discuss the safety plan with him or his
involvement as a safety plan participant. Latika’s sister, who
was also identified as a safety plan participant, was not present
at the meeting.
Aburumuh was the only person to sign the December 3,
2015, safety plan. Latika and the other safety plan partici-
pants did not sign it. Aburumuh testified that Latika verbally
agreed to the December 3 safety plan. Aburumuh testified
that the safety plan was not signed because she needed to
correct the name of Latika’s brother, who was a plan par-
ticipant. Aburumuh testified that she later attempted to have
Latika sign the correct safety plan but was unable to meet up
with her.
On December 20, 2015, reports of domestic violence
between Latika and Deontrae were made to law enforcement.
On December 29, DHHS was made aware of the domestic vio-
lence report. As a result of learning of the domestic violence
report, on December 31, Aburumuh and Kevin Peatrowsky,
who is a child and family services specialist with DHHS, met
with Latika in order to investigate the domestic violence alle-
gation of December 20. Peatrowsky testified Latika told him
that she and Deontrae had gotten into an argument that resulted
in a physical fight and that during the argument, Deontrae
had broken a picture frame over Latika’s head and a bowl of
cereal was spilled. Peatrowsky testified that he understood that
there had been physical violence between Latika and Deontrae
“[m]ore than two times in the past year . . . .”
On December 31, 2015, Peatrowsky presented Latika with
an updated safety plan. The December 31 safety plan included
the services and conditions outlined in the December 3 safety
plan. The December 31 safety plan further stated that Carmelo
was “not currently safe staying in the family home of Latika”
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IN RE INTEREST OF CARMELO G.
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and that he would “now stay with the maternal aunt . . .
in order to ensure that the safety of the child is secured.”
The December 31 safety plan was signed by all the safety
plan participants.
On January 5, 2016, the State filed a petition against Latika
pursuant to § 43-247(3)(a) (Supp. 2015) in which the State
alleged that Carmelo lacked proper parental care by reason
of the fault or habits of Latika. Specifically, the State alleged
in the petition that (1) Latika’s use of alcohol or drugs places
Carmelo at risk; (2) Latika has participated in domestic vio-
lence with Deontrae; (3) Latika has failed to work with an
agreed-upon NFC plan; (4) on or about December 20, 2015,
Latika was involved in a domestic violence incident with
Deontrae in which law enforcement was called to the home
where Carmelo resides; (5) on December 31, Latika admitted
to an NFC employee that she had willingly let Denotrae into
her home on December 20; and (6) due to the above allega-
tions, Carmelo is at risk.
On that same day, January 5, 2016, the juvenile court filed
an ex parte order in which it granted immediate temporary
custody of Carmelo to DHHS. The court stated that based
upon its findings of drug use and domestic violence, Carmelo
was seriously endangered in his surroundings. The court fur-
ther stated that continuation of Carmelo in his home would be
contrary to his health, safety, or welfare and that immediate
removal appeared to be necessary for Carmelo’s protection.
The court further noted that reasonable efforts were made
to prevent removal or that exigent circumstances precluded
reasonable efforts from being made. Such reasonable efforts
included a “[s]afety plan, drug testing, [i]nte[n]sive [o]utpa-
tient [t]reatment, [and] IFP services.” Based on the foregoing,
the court ordered that DHHS was to take temporary custody of
Carmelo, which DHHS did. The ex parte order set a protective
custody hearing for January 12, 2016.
The State moved for Carmelo’s continued detention, with
placement to exclude the parental home. Carmelo’s guardian
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IN RE INTEREST OF CARMELO G.
Cite as 296 Neb. 805
ad litem and DHHS joined in the motion. Latika and Deontrae
resisted the continued detention. At some point during these
proceedings, Deontrae no longer resisted the continued deten-
tion, and he is not a part of this appeal.
On January 7, 2016, the juvenile court judge recused himself
because he was the judge who had presided over the proceed-
ings in case No. JV 15-1285. The protective custody hearing
was reset for January 21.
The protective custody hearing was held on January 21,
2016, but it was continued for a further evidentiary hearing.
Continued evidentiary hearings were held on February 10
and 24, March 10, May 13, and August 2. Each continuance
order stated that the hearing was continued “due to insuf-
ficient time,” except for the order continuing the hearing
from May 13 to August 2, in which the court stated that “the
county attorney moved for a continuance for the reason that
the witness is on vacation.” The parties did not object to
the continuances.
Aburumuh and Peatrowsky testified at the protective cus-
tody hearing. The juvenile court received eight exhibits,
including the December 3, 2015, safety plan; the December
31, 2015, safety plan; certain certified copies of orders from
case No. JV 15-1285; results of Latika’s drug tests; and
Aburumuh’s affidavit for removal dated January 5, 2015.
The protective custody hearing was concluded on August 2,
2016, and the juvenile court filed a protective custody order
on September 19, in which it sustained the State’s motion
for continued temporary custody. The court stated that by a
preponderance of the evidence, it found that exigent circum-
stances existed, reasonable efforts were not required to prevent
removal of Carmelo from the home of Latika, and it would
be contrary to Carmelo’s health and safety for Carmelo to be
returned home. The court determined that it was in Carmelo’s
best interests, safety, and welfare to remain in the temporary
custody of DHHS.
Latika appeals.
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IN RE INTEREST OF CARMELO G.
Cite as 296 Neb. 805
ASSIGNMENTS OF ERROR
Latika assigns, restated, that (1) she was denied due process
due to the unreasonable delay of more than 8 months between
the issuance of the ex parte custody order and that of the pro-
tective custody order continuing Carmelo’s detention outside
the parental home pending adjudication and (2) she was denied
due process when the juvenile court determined that continuing
Carmelo’s detention was necessary based on Latika’s noncom-
pliance with the December 3, 2015, safety plan because the
plan was invalid and coercive.
STANDARDS OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings. In re Interest of Noah B. et al., 295 Neb.
764, 891 N.W.2d 109 (2017).
[2,3] The determination of whether the procedures afforded
an individual comport with constitutional requirements for pro-
cedural due process presents a question of law. In re Interest
of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (2014).
On a question of law, an appellate court reaches a conclusion
independently of the court below. In re Interest of Noah B. et
al., supra.
ANALYSIS
In her first assignment of error, Latika claims that her pro-
cedural due process rights were violated by the unreasonable
delay of more than 8 months between the issuance of the ex
parte order for immediate temporary custody and that of the
protective custody order, sometimes referred to as the “deten-
tion order.” Although Latika’s objections to the process tended
to focus on the initial removal of Carmelo, the court recog-
nized on the record that the duration of the proceedings had
been prolonged. We find merit to Latika’s assignment of error
claiming a denial of due process.
[4-6] The proper starting point for legal analysis when
the State involves itself in family relations is always the
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IN RE INTEREST OF CARMELO G.
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fundamental constitutional rights of a parent. In re Interest of
Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014). The interest
of parents in the care, custody, and control of their children
is perhaps the oldest of the fundamental liberty interests rec-
ognized by the U.S. Supreme Court. Jeremiah J. v. Dakota
D., 287 Neb. 617, 843 N.W.2d 820 (2014), citing Troxel v.
Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000). The fundamental liberty interest of natural parents in
the care, custody, and management of their child is afforded
due process protection. Zahl v. Zahl, 273 Neb. 1043, 736
N.W.2d 365 (2007); In re Interest of Mainor T. & Estela T.,
267 Neb. 232, 674 N.W.2d 442 (2004). Such due process
rights include the right to be free from an unreasonable delay
in providing a parent a meaningful hearing after the entry of
an ex parte temporary custody order. See In re Interest of R.G.,
238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other
grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d
350 (1998). We have previously described the three-stage
analysis employed for a claim that one is being deprived of a
liberty interest without due process of law. See, Sherman T. v.
Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013); In re Interest
of R.G., supra. We have undertaken that analysis.
[7,8] Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2014) allows
the State to take a juvenile into custody without a warrant
or order of the court when it appears the juvenile “is seri-
ously endangered in his or her surroundings and immediate
removal appears to be necessary for the juvenile’s protection.”
However, the parent retains a liberty interest in the continu-
ous custody of his or her child. In re Interest of Mainor T.
& Estela T., supra. An ex parte order authorizing temporary
custody with DHHS is permitted because of its short dura-
tion and the requirement of further action by the State before
custody can be continued. Id. See, also, In re Interest of R.G.,
supra. 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
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nor unreasonably delay in providing the parent a meaningful
hearing.” In re Interest of R.G., 238 Neb. at 419, 470 N.W.2d
at 790 (emphasis supplied). 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.” In re Interest of Mainor T. & Estela T.,
267 Neb. at 246, 674 N.W.2d at 456. See, also, In re Interest
of R.G., supra.
In the present case, the State filed its petition on January
5, 2016, and on that same day, the juvenile court filed the
ex parte order for immediate custody. DHHS took custody
of Carmelo. The State moved for Carmelo’s continued deten-
tion. The protective custody hearing was set for January 12,
which was 7 days after the filing of the ex parte order. The
judge then recused himself, and the protective custody hear-
ing was rescheduled for January 21. The hearing began on
January 21, which was 16 days following the entry of the ex
parte order. Receipt of evidence could not be completed in
the time allotted for the hearing, and this hearing and several
subsequent hearings were continued. Hearings were held on
February 10 and 24, March 10, May 13, and August 2. The
hearing concluded on August 2. The juvenile court filed its
protective custody order on September 19, which was more
than 8 months after the ex parte order for immediate custody
was filed.
Latika argues that the more than 8-month delay between
the entry of the ex parte order and that of the protective cus-
tody order was unreasonable and violated her due process
rights. In contrast, Carmelo’s guardian ad litem and the State
contend that the delay between the issuance of the ex parte
order and that of the protective custody order was not unrea-
sonable, because Latika received notice for each of the hear-
ings and received services and visitation with Carmelo during
this period of time. The guardian ad litem and the State also
assert that “the elapsed time was for the purpose of providing
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[Latika] a meaningful opportunity to be heard.” Brief for
appellee guardian ad litem at 14.
We disagree with the argument of the guardian ad litem and
the State to the effect that the period of delay was a benefit to
Latika and Carmelo. Instead, we determine that the more than
8-month delay between the entry of the ex parte order and that
of the protective custody order was unreasonable and resulted
in a violation of Latika’s procedural due process rights. As
stated above, an ex parte order authorizing temporary custody
with DHHS is permitted because of its short duration, and 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. See In re Interest of Mainor T. & Estela T.,
267 Neb. 232, 674 N.W.2d 442 (2004).
In In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780
(1991), disapproved on other grounds, O’Connor v. Kaufman,
255 Neb. 120, 582 N.W.2d 350 (1998), we recognized that par-
ents have due process rights to be free from an unreasonable
delay in providing the parents a meaningful hearing after an
ex parte order for immediate custody is filed. In In re Interest
of R.G., we concluded that the 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. We cautioned,
however, 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.” Id. at 423, 470
N.W.2d at 792.
In this case, the detention hearing commenced on January
21, 2016, which was 16 days after the ex parte order was filed.
This is 2 days more than the time that elapsed between the
entry of the ex parte order and the hearing in In re Interest of
R.G., and in that case, we cautioned that the 14-day period left
the procedures employed “on the brink of unreasonableness.”
238 Neb. at 423, 420 N.W.2d at 792. The protective custody
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hearing in this case was continued over a period of several
months, until it finally concluded on August 2. Thereafter, the
juvenile court filed its protective custody order on September
19, which was more than 8 months after the ex parte order was
filed. The allowance of such an ex parte temporary action is
a reasonable reaction to a perceived emergency situation. See
In re Interest of R.G., supra. However, in exercising its parens
patriae interest and taking such ex parte temporary action, the
State may not unreasonably delay in providing the parent a
meaningful hearing. See id. This is because a parent has a lib-
erty interest in raising his or her child, a concept which encom-
passes the child’s custody, care, and control. See Jeremiah
J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014). The
more than 8-month delay in this case between the filing of the
ex parte order and that of the protective custody order is too
long a duration and results in interference with Latika’s liberty
interest in raising Carmelo.
This court is well aware of the many challenges involved
in scheduling and completing evidentiary hearings in jurisdic-
tions with crowded dockets, including the reality that lawyers
are sometimes unable to complete their evidence in the time
allotted and continuances are necessary. But despite these chal-
lenges, we have recognized that the juvenile court is respon-
sible for managing its docket. That responsibility includes
providing prompt detention hearings on an ex parte protective
custody order, and in this case, we cannot find that the protec-
tive custody hearing was initiated or resolved promptly. The
delay in this case was unreasonable, and Latika’s procedural
due process rights were violated because of this unreason-
able delay.
We note that the parties did not directly object to the con-
tinuances of the hearing. However, this does not impact our
analysis. In In re Interest of D.M.B., 240 Neb. 349, 355-56,
481 N.W.2d 905, 911 (1992), we stated that “[a] delay of 8
months between the time a child is ‘temporarily’ taken from
the child’s parent until the child and parent are given the
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evidentiary safeguards of an adjudication hearing cannot be
condoned, even when, as here, the parties agreed to repeated
continuances.” (Emphasis supplied.) We similarly agree in the
instant case that the 8-month delay between the issuance of
the ex parte order and that of the protective custody order can-
not be condoned, even though the parties did not object to the
repeated continuances of the protective custody hearing.
We determine that Latika’s procedural due process rights
were violated. Therefore, we vacate the September 19, 2016,
order of the juvenile court and remand the cause for fur-
ther proceedings.
[9] Because our determination of Latika’s first assignment
of error is dispositive, we do not reach her second assignment
of error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it. Medicine Creek v. Middle Republican NRD,
ante p. 1, 892 N.W.2d 74 (2017).
CONCLUSION
We conclude that Latika’s procedural due process rights
were violated by the unreasonable delay of more than 8 months
between the filing of the ex parte order for immediate tem-
porary custody and the filing of the protective custody order.
Therefore, we vacate the September 19, 2016, temporary pro-
tective order of the juvenile court and remand the cause for
further proceedings.
Order vacated, and cause remanded
for further proceedings.