In re Interest of Rylee S. ( 2013 )

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assistance or other precautions. Summed up, this is a claim that
the therapist negligently assessed her abilities and needs. For
this reason, I concur in the judgment that this a professional
negligence claim.
In re I nterest of Rylee S., a child
under 18 years of age.
State of Nebraska, appellee, v.
Lisa S., appellant.
___ N.W.2d ___
Filed April 25, 2013. No. S-12-531.
1. Juvenile Courts: Parental Rights. A juvenile court has the discretionary power
to prescribe a reasonable program for parental rehabilitation to correct the condi-
tions underlying the adjudication that a child is a juvenile within the Nebraska
Juvenile Code.
2. ____: ____. While there is no requirement that the juvenile court must institute
a plan for rehabilitation of a parent, the rehabilitation plan must be conducted
under the direction of the juvenile court and must be reasonably related to the
plan’s objective of reuniting parent with child.
3. Juvenile Courts: Appeal and Error. In analyzing the reasonableness of a plan
ordered by a juvenile court, the Nebraska Supreme Court has noted that the fol-
lowing question should be addressed: Does a provision in the plan tend to correct,
eliminate, or ameliorate the situation or condition on which the adjudication has
been obtained under the Nebraska Juvenile Code? An affirmative answer to this
question provides the materiality necessary in a rehabilitative plan for a parent
involved in proceedings within a juvenile court’s jurisdiction. Otherwise, a court-
ordered plan, ostensibly rehabilitative of the conditions leading to an adjudication
under the Nebraska Juvenile Code, is nothing more than a plan for the sake of a
plan, devoid of corrective and remedial measures.
4. Juvenile Courts: Parent and Child. Similar to other areas of law, reasonable-
ness of a rehabilitative plan for a parent depends on the circumstances in a par-
ticular case and, therefore, is examined on a case-by-case basis.
5. Juvenile Courts: Parental Rights: Child Custody: Visitation. Pretreatment
assessments, psychiatric testing, or psychological evaluations of a parent may be
required to determine the best interests of a child when issues of custody, visita-
tion, and termination of parental rights are presented.
6. Juvenile Courts: Parental Rights. Juvenile courts have broad discretionary
power to rehabilitate a parent, but not without limits.
7. Juvenile Courts: Parental Rights: Child Custody: Visitation: Evidence. If a
juvenile court finds that a pretreatment assessment and/or the release of medical
records are necessary for parental rehabilitation in cases not involving custody,
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visitation, or termination of parental rights, the record should contain evidence
sufficient to justify the need behind such order and how it will lead to correcting,
eliminating, or ameliorating the issue presented.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Reversed and remanded
with directions.
Lea Wroblewski, of Legal Aid of Nebraska, for appellant.
Jon Bruning, Attorney General, and Sarah E. Sujith, Special
Assistant Attorney General, for appellee.
Amy A. Miller for amicus curiae American Civil Liberties
Union Foundation of Nebraska.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
On April 4, 2012, the child, Rylee S., was adjudicated under
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). As part of the
adjudication, on May 16, appellant, Lisa S., Rylee’s mother,
was ordered by the juvenile court to complete a pretreatment
assessment and to sign releases of information to allow the
Nebraska Department of Health and Human Services (DHHS)
an opportunity to access information from her therapist and
treatment providers. Lisa appeals the reasonableness of the
juvenile court’s order. We reverse, and remand to the juvenile
court with directions to amend the dispositional plan and order
consistent with the findings of this opinion.
FACTUAL BACKGROUND
Lisa is the biological mother of Rylee, age 16. Rylee has
always been under Lisa’s care and continues to be under her
care pending this appeal. Rylee is nonverbal and autistic.
Rylee’s father is deceased.
The juvenile petition in this case was filed because Rylee
was excessively absent from school during the 2010-11 and
2011-12 school years. After the petition was filed, Lisa self-
reported to Rylee’s school that Rylee refused to go to school.
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Both the school and DHHS observed Rylee’s being physically
aggressive with himself and Lisa when she attempted to get
him ready for school. Upon discovering that Lisa was not at
fault regarding Rylee’s excessive absences, the State accord-
ingly amended its petition, placing no fault upon Lisa. On
April 4, 2012, the juvenile court entered an order finding the
allegations of the amended juvenile petition to be true and
adjudicating Rylee as a child as defined by § 43-247(3)(a).
Subsequently, Lisa met with special education teachers at
Rylee’s school, Rylee’s guardian ad litem (GAL), and DHHS
to create a plan for Rylee to successfully attend school. One
plan was to stop having Rylee take the bus to school, as he
refused to get on the bus, and have Lisa personally drive him
to school. This plan, however, failed when Rylee refused to get
out of the car, locked himself inside, and damaged the inside of
the car. On another occasion, Rylee physically assaulted Lisa
outside of the school building. Rylee is otherwise cooperative
and functions properly once inside the school.
While being interviewed by DHHS related to Rylee’s adju-
dication, Lisa stated that she suffers from anxiety and anxiety
attacks and is seeing a therapist. Lisa also stated that she
is on medication to treat the condition. As a result of these
statements, Lisa’s DHHS child and family services specialist
recommended a “pretreatment assessment to identify if Lisa
would benefit from other services.”
At Rylee’s May 4, 2012, disposition hearing, Lisa’s child
and family services specialist did not appear. In her place was
a new specialist who had been assigned to the case just 11 days
prior to the hearing. Also present at the hearing were counsel
for the State, counsel for Lisa, counsel for DHHS, and Rylee’s
GAL. At the hearing, Lisa testified that she suffers from
anxiety and posttraumatic stress disorder and is seeking mental
health treatment, which she felt was working.
During Lisa’s testimony, the State asked Lisa whether she
would be willing to sign releases of information to allow
DHHS to review her treatment records in order to identify
whether Lisa would benefit from other services. Lisa agreed to
sign the releases. Later, to clarify what the State had asked of
Lisa, counsel for Lisa asked Lisa alternatively if she would be
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willing to sign a “limited” release to confirm with her mental
health professionals that additional services are not necessary
in her case. Lisa answered affirmatively to this question. At
the end of the hearing, counsel for Lisa explained that such
“limited” release would consist of a “yes” or “no” statement
from Lisa’s mental health professional as to whether Lisa was
in need of additional help.
At the close of the evidence, counsel for DHHS asked the
juvenile court to adopt its recommendations and to order the
signing of releases as a modification or addition to its written
recommendations. The DHHS case plan recommendation was
a permanency objective of family preservation. The State and
Rylee’s GAL agreed with DHHS’ recommendations. During
closing arguments, there was extensive discussion between the
juvenile court and legal counsel regarding the need for Lisa
to have a pretreatment assessment and to sign the releases of
information, as well as the appropriate scope of the releases.
Counsel for Lisa objected to the need for Lisa to undergo a
pretreatment assessment and to sign the releases of informa-
tion. Lisa’s counsel argued that because Lisa is currently treat-
ing with mental health professionals, she does not need further
services for her issues. Further, counsel argued this would be
“a huge breach of confidentiality and her privacy, particularly,
if . . . [t]here may be information there that has nothing to do
with Rylee” or Lisa’s parenting abilities.
The juvenile court entered its dispositional order on May
16, 2012, adopting DHHS’ recommendations and rehabilita-
tion plan:
[Lisa] shall participate in a pretreatment assessment.
[Lisa] will sign releases of information to allow [DHHS]
an opportunity to access information from [Lisa’s] thera-
pist and treatment providers to assist [DHHS] in deter-
mining what services would be most helpful to the
mother in the effort to maintain Rylee . . . in the fam-
ily home.
ASSIGNMENTS OF ERROR
Lisa assigns, renumbered and restated, that the juvenile
court erred in (1) ordering a rehabilitation plan that was
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unreasonable and immaterial to the issues adjudicated as far as
it ordered Lisa to (a) participate in a pretreatment assessment
and (b) sign releases of information to allow DHHS an oppor-
tunity to access information from Lisa’s therapist and treat-
ment providers, and (2) violating the federal Health Insurance
Portability and Accountability Act of 1996 by failing to limit
the scope of the court-ordered releases of information.
STANDARD OF REVIEW
Cases arising under the Nebraska Juvenile Code are reviewed
de novo on the record, and an appellate court is required to
reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court
will consider and give weight to the fact that the lower court
observed the witnesses and accepted on version of the facts
over the other.1
ANALYSIS
Pretreatment Assessment and
Medical Releases.
[1,2] Lisa assigns that the dispositional plan and subsequent
order in this case were unreasonable, unrelated to the issues
adjudicated, and not in Rylee’s best interests insofar as they
order her, the parent, to submit to a pretreatment assessment
and sign releases of information to allow DHHS an oppor-
tunity to access information from her therapist and treat-
ment providers.
A juvenile court has the discretionary power to pre-
scribe a reasonable program for parental rehabilitation
to correct the conditions underlying the adjudication that
a child is a juvenile within the Nebraska Juvenile Code.
[Citations omitted.] While there is no requirement that
the juvenile court must institute a plan for rehabilitation
of a parent . . . the rehabilitation plan must be conducted
under the direction of the juvenile court and must be rea-
sonably related to the plan’s objective of reuniting parent
with child.2
1
In re Interest of Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006).
2
In re Interest of C.D.C., 235 Neb. 496, 500, 455 N.W.2d 801, 805 (1990).
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[3,4] In analyzing the reasonableness of a plan ordered by a
juvenile court, this court has noted that the following question
should be addressed:
Does a provision in the plan tend to correct, elimi-
nate, or ameliorate the situation or condition on which
the adjudication has been obtained under the Nebraska
Juvenile Code? An affirmative answer to the preceding
question provides the materiality necessary in a rehabili-
tative plan for a parent involved in proceedings within a
juvenile court’s jurisdiction. Otherwise, a court-ordered
plan, ostensibly rehabilitative of the conditions leading
to an adjudication under the Nebraska Juvenile Code, is
nothing more than a plan for the sake of a plan, devoid of
corrective and remedial measures. Similar to other areas
of law, reasonableness of a rehabilitative plan for a par-
ent depends on the circumstances in a particular case and,
therefore, is examined on a case-by-case basis.3
Lisa claims the court-ordered plan in this case is unreason-
able because her statements to DHHS concerning her mental
health needs were not requests for assistance. In fact, Lisa
told DHHS that she felt the frequent and regular treatment she
was receiving was adequate. Lisa asserts there is no evidence
that her mental health is related to an adjudicated issue of this
case. Therefore, she claims the juvenile court was unreason-
able in ordering her to submit to a pretreatment assessment and
sign releases of information to allow DHHS an opportunity to
access her mental health information. Lisa further points out
that she was not at fault in this case and that the court should
have been concerned with whether the child’s needs were being
met, not with Lisa’s needs. Furthermore, the evidence shows
Lisa was fully cooperative with all services for Rylee and
actively involved in trying to put services in place to help him
get to school.
The material issue of this juvenile adjudication is Rylee’s
difficulty associated with getting to school, and the result-
ing truancy, caused by his diagnosis of nonverbal autism.
3
In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 268, 417 N.W.2d 147,
158 (1987).
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The question this court must address is whether having Lisa
release all of her mental health records to DHHS and hav-
ing her undergo a pretreatment assessment will tend to cor-
rect, eliminate, or ameliorate Rylee’s difficulty with getting to
school. In other words, we must decide if this is a reasonable
rehabilitative plan for Lisa, the parent, depending on the cir-
cumstances of this particular case. We find it is not. The court-
ordered rehabilitation plan in this case is unreasonable insofar
as it orders Lisa to submit to a pretreatment assessment and
sign releases of information to allow DHHS an opportunity to
access her mental health information.
The record establishes that Lisa is a fit mother and has been
fully cooperative in attempting to get Rylee to successfully
attend school. Indeed, the State amended its petition recogniz-
ing Rylee’s problems arise “through no fault” of Lisa, which
the court’s order also recognizes. Lisa has met and coordinated
with all interested parties in this matter to help Rylee get to
school. While this appeal has been pending, Lisa has essen-
tially been ready, willing, and able to assist Rylee. We find no
specific findings of fault by the juvenile court supporting this
parental rehabilitation plan.4
Further, under our de novo review, we do not find sufficient
evidence in the record suggesting that having Lisa release all
of her mental health records to DHHS and undergo a pretreat-
ment assessment will eliminate or contribute to eliminating
Rylee’s difficulties. There is a failure of proof in this case
as to the relevancy of the State’s request. There is neither a
showing of need for parental rehabilitation nor a specific reha-
bilitative plan suggested, i.e., turning over Lisa’s mental health
records to DHHS and a pretreatment assessment. The plan
does not correct the conditions underlying the adjudication
that Rylee is a juvenile within § 43-247(3)(a) of the Nebraska
Juvenile Code.
[5] We have held that pretreatment assessments, psychi-
atric testing, or psychological evaluations of a parent may
be required to determine the best interests of a child when
4
See In re Interest of L.P. and R.P., 240 Neb. 112, 480 N.W.2d 421 (1992).
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issues of custody, visitation, and termination of parental rights
are presented.5 However, this case is inherently distinct, for
example, from the factual situations of cases wherein a pre-
treatment assessment, a psychological evaluation, or psychi-
atric testing for a parent was ordered by the juvenile court.6
The circumstances of such cases encompassed instances of
abuse and neglect where a child lacked proper care because
of the faults and habits of the parent.7 Here, no such issues
are presented.
[6,7] Juvenile courts have broad discretionary power to
rehabilitate a parent, but not without limits.8 By deciding in
the instant case that the juvenile court could not order the par-
ent, who is not at fault, to submit to a pretreatment assessment
or to release certain medical records, we are not hindering
the juvenile court’s discretion. If a juvenile court finds that a
pretreatment assessment and/or the release of medical records
are necessary for parental rehabilitation in cases not involving
custody, visitation, or termination of parental rights, the record
should contain evidence sufficient to justify the need behind
such order and how it will lead to correcting, eliminating, or
ameliorating the issue presented.
Based on the specific circumstances of this case, the juve-
nile court made no findings of fact sufficient to justify its
order. Further, in our de novo review of the facts, we find
no showing that such order tended to correct, eliminate,
or ameliorate the situation on which this adjudication was
obtained. Accordingly, we find that the dispositional plan
and subsequent order in this case were unreasonable as far
5
See In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987),
overruled on other grounds, State v. Jacob, 242 Neb. 176, 494 N.W.2d 109
(1993).
6
See, In re Interest of J.S., S.C., and L.S., 224 Neb. 234, 397 N.W.2d 621
(1986); In re Interest of S.P., N.P., and L.P., 221 Neb. 165, 375 N.W.2d
616 (1985); In re Interest of Wood and Linden, 209 Neb. 18, 306 N.W.2d
151 (1981).
7
Id.
8
See In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142
(1996).
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as they require Lisa, the parent, to submit to a pretreatment
assessment and sign releases of information to allow DHHS
an opportunity to access information from her therapist and
treatment providers.
Limiting Scope of Court-Ordered
Releases of Information.
In light of this finding, we do not address Lisa’s second
assignment of error in which she argues the juvenile court’s
order should be reversed because it violates the provisions of
the federal Health Insurance Portability and Accountability Act
of 1996.
CONCLUSION
For the foregoing reasons, we find the decision of the juve-
nile court ordering Lisa to submit to a pretreatment assessment
and sign releases of information to allow DHHS an opportunity
to access her mental health information was unreasonable. We
reverse, and remand to the juvenile court with directions to
amend its dispositional plan and order consistent with the find-
ings of this opinion.
R eversed and remanded with directions.
Miller-Lerman, J., participating on briefs.
Connolly, J., concurring
I agree with the result of the majority opinion. But I disagree
with the opinion’s characterization of the juvenile court’s dis-
position order as adopting a rehabilitation plan. It is true that
the court adopted DHHS’ recommendation to compel Rylee’s
mother to release her mental health records and cooperate with
a “pretreatment assessment.” But the order did not set out a
rehabilitation plan.
Neb. Rev. Stat. § 43‑288 (Reissue 2008) sets the contours
of a rehabilitation plan. Under § 43‑288, as a condition of a
juvenile’s placement in the parent’s home, a court may order a
parent to comply with statutorily specified requirements. The
requirements that a court can impose include taking proper
steps to ensure the juvenile’s regular school attendance. But
the “terms and conditions . . . shall relate to the acts or omis-
sions of the juvenile, the parent, or other person responsible
for the care of the juvenile which constituted or contributed
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to the problems which led to the juvenile court action in such
case.” (Emphasis supplied.) Rylee’s mother did not contribute
to Rylee’s missing school.
The State did not allege or prove that Rylee’s mother was at
fault for Rylee’s school absences. Additionally, DHHS did not
allege or prove that Rylee’s mother had mental health issues
that she must deal with to correct conditions leading to the
adjudication. Instead, the evidence showed that Rylee’s grand-
parents were also unable to get Rylee to school and that the
mother had worked diligently to get Rylee help. The focus of
DHHS’ court report and the hearing was on providing services
and treatment for Rylee.
Similarly, DHHS’ court report did not recommend that the
mother comply with a mental health assessment to correct
conditions that led to the adjudication, such as conflicts in the
home. Nor did the court’s order require the mother to obtain
a mental health assessment to correct conditions that led to
the adjudication.
In my view, because the court did not order Rylee’s mother
to correct any conditions that led to the adjudication, the court
did not order a rehabilitation plan. An order to release mental
health records and cooperate with a pretreatment assessment,
standing alone, is not a rehabilitation plan. The issue is not
whether the court’s rehabilitation plan was reasonable. The
issue is whether the court can order a fishing expedition that is
unrelated to any rehabilitation plan. The answer is no.
Additionally, the court’s order requiring Rylee’s mother to
release her mental health records for the State’s assessment
raises substantial privacy concerns. A juvenile court can adju-
dicate a juvenile under the no‑fault provision of Neb. Rev.
Stat. § 43‑247(3) (Reissue 2008) when a parent suffers from a
diagnosed mental illness.1 But that is not the case here. Instead,
the no‑fault adjudication was based solely on Rylee’s mental
health needs.
I cannot imagine a circumstance in which a court would
properly order a parent to release his or her past mental
health records in a no‑fault adjudication based solely on the
1
See In re Interest of Constance G., 247 Neb. 629, 529 N.W.2d 534 (1995).
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juvenile’s mental health needs. I would agree that if the State
presents evidence that a parent is not properly dealing with
a child’s mental health issues, a court could order the parent
to comply with suitable therapy and require followup reports.
But an order to release past mental health records so that the
State can assess them is substantially different from requiring
a parent to obtain mental health or substance abuse treatment
or to participate in family therapy. This court has not previ-
ously addressed the privacy concerns raised by an order like
this and need not do so now. But I believe an advisory opin-
ion that such orders are within a juvenile court’s discretion
is inappropriate.