43-101. Children eligible for adoption.

(1) Except as otherwise provided in the Nebraska Indian Child Welfare Act, any minor child may be adopted by any adult person or persons and any adult child may be adopted by the spouse of such child's parent in the cases and subject to sections 43-101 to 43-115, except that no person having a spouse may adopt a minor child unless the spouse joins in the petition therefor. If the spouse so joins in the petition therefor, the adoption shall be by them jointly, except that an adult spouse may adopt a child of the other spouse whether born in or out of wedlock.

(2) Any adult child may be adopted by any person or persons subject to sections 43-101 to 43-115, except that no person having a spouse may adopt an adult child unless the spouse joins in the petition therefor. If the spouse so joins the petition therefor, the adoption shall be by them jointly. The adoption of an adult child by another adult or adults who are not the stepparent of the adult child may be permitted if the adult child has had a parent-child relationship with the prospective parent or parents for a period of at least six months next preceding the adult child's age of majority and (a) the adult child has no living parents, (b) the adult child's parent or parents had been deprived of parental rights to such child by the order of any court of competent jurisdiction, (c) the parent or parents, if living, have relinquished the adult child for adoption by a written instrument, (d) the parent or parents had abandoned the child for at least six months next preceding the adult child's age of majority, or (e) the parent or parents are incapable of consenting. The substitute consent provisions of section 43-105 do not apply to adoptions under this subsection.

Source:Laws 1943, c. 104, § 1, p. 349; R.S.1943, § 43-101; Laws 1984, LB 510, § 1; Laws 1985, LB 255, § 17; Laws 1999, LB 594, § 8; Laws 2022, LB741, § 3.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

The plain language of this section allows a same-sex married couple to adopt a minor child. In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).

Adoption proceedings are special proceedings. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).

For an adoption to be valid under Nebraska's adoption statutes, the record must show the following factors: (1) the existence of an adult person or persons entitled to adopt, (2) the existence of a child eligible for adoption, (3) compliance with statutory procedures providing for adoption, and (4) evidence that the proposed adoption is in the child's best interests. Reading the adoption statutes in their entirety, it is clear that aside from the stepparent adoption scenario, the parents' parental rights must be terminated or the existing nonterminated parent or parents must relinquish in order for the child to be eligible for adoption by any adult person or persons under this section. In re Adoption of Luke, 263 Neb. 365, 640 N.W.2d 374 (2002).

Husband and wife should join in petition for adoption. Hiatt v. Menendez, 157 Neb. 914, 62 N.W.2d 123 (1954).

43-101.01. Terms, defined.

For purposes of sections 43-101 to 43-115:

(1) Acknowledged father means an individual who has:

(a) Executed a valid acknowledgment of paternity; or

(b) Acknowledged paternity through establishment of a familial relationship with the child for a period of at least six months;

(2) Adjudicated father means an individual who has been determined by a court of competent jurisdiction, in this state or in another state or territory of the United States, to be the biological or legal father of a minor child; and

(3) Juvenile court means the separate juvenile court where it has been established pursuant to sections 43-2,111 to 43-2,127 and the county court sitting as a juvenile court in all other counties.

Source:Laws 2022, LB741, § 4.

43-102. Petition requirements; decree; jurisdiction; filings.

(1) Except as otherwise provided in the Nebraska Indian Child Welfare Act, any person or persons desiring to adopt a minor child or an adult child shall file a petition for adoption signed and sworn to by the person or persons desiring to adopt. The following shall be filed prior to the hearing required under section 43-103:

(a) The consent or consents required by sections 43-104 and 43-105 or section 43-104.07;

(b) The documents required by section 43-104.07 or the documents required by sections 43-104.08 to 43-104.24;

(d) The completed and signed affidavit described in section 43-104.09 if required by such section;

(e) The completed and signed affidavit described in section 43-104.16 if required by such section; and

(f) When a consent is not required under subdivision (4)(c) of section 43-104, a certified copy of the termination order.

(2) The county court of the county in which the person or persons desiring to adopt a child reside has jurisdiction of adoption proceedings, except that if a juvenile court already has jurisdiction over the child to be adopted under the Nebraska Juvenile Code, such juvenile court has concurrent jurisdiction with the county court in such adoption proceeding. If a child to be adopted is a ward of any court or a ward of the state at the time of placement and at the time of filing an adoption petition, the person or persons desiring to adopt shall not be required to be residents of Nebraska. The petition and all other court filings for an adoption proceeding shall be filed with the clerk of the county court. The party shall state in the petition whether such party requests that the proceeding be heard by the county court or, in cases in which a juvenile court already has jurisdiction over the child to be adopted under the Nebraska Juvenile Code, such juvenile court. Such proceeding is considered a county court proceeding even if heard by a juvenile court judge and an order of the juvenile court in such adoption proceeding has the force and effect of a county court order. The testimony in an adoption proceeding heard before a juvenile court judge shall be preserved as in any other juvenile court proceeding.

Source:Laws 1943, c. 104, § 2, p. 349; R.S.1943, § 43-102; Laws 1975, LB 224, § 1; Laws 1983, LB 146, § 1; Laws 1984, LB 510, § 2; Laws 1985, LB 255, § 18; Laws 1993, LB 16, § 1; Laws 1995, LB 712, § 19; Laws 1996, LB 1001, § 1; Laws 1998, LB 1041, § 6; Laws 1999, LB 375, § 2; Laws 1999, LB 594, § 9; Laws 2007, LB247, § 4; Laws 2007, LB296, § 62; Laws 2018, LB193, § 78; Laws 2022, LB741, § 5.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Nebraska Juvenile Code, see section 43-2,129.

Annotations

This section and sections 43-103 and 43-104, construed together, require that before a county court entertains a decision on the merits in an adoption proceeding, all those statutorily required to consent have done so. In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016).

Under this section, a county court or juvenile court will ordinarily have jurisdiction over an adoption proceeding. But district courts have inherent equity jurisdiction to resolve custody disputes, and they have jurisdiction over habeas proceedings challenging adoption proceedings. Accordingly, a county court's statutory jurisdiction over an adoption petition does not give it exclusive jurisdiction to resolve challenges to Nebraska's adoption statutes that could have foreclosed the adoption. In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

Failure to sign and verify petition was not jurisdictional. Hiatt v. Menendez, 157 Neb. 914, 62 N.W.2d 123 (1954).

County court in adoption proceeding determines question of permanent custody and control of minor. Krell v. Jenkins, 157 Neb. 554, 60 N.W.2d 613 (1953).

Statutory procedure for adoption must be followed. In re Petition of Ritchie, 155 Neb. 824, 53 N.W.2d 753 (1952).

43-102.01. Military personnel; deemed residents; when.

For purposes of adoption, persons serving in the armed forces of the United States, who have been continuously stationed at any military base or installation in the State of Nebraska for the period of one year immediately preceding the filing of a petition for adoption shall be deemed residents in good faith of this state and the county where such military base or installation is located.

Source:Laws 1969, c. 337, § 1, p. 1196.

43-103. Petition; hearing; notice.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, upon the filing of a petition for adoption the court shall fix a time for hearing the same. The hearing shall be held not less than four weeks nor more than eight weeks after the filing of such petition unless any party for good cause shown requests a continuance of the hearing or all parties agree to a continuance. The court may require notice of the hearing to be given to the child, if over fourteen years of age, to the natural parent or parents of the child, and to such other interested persons as the judge may, in the exercise of discretion, deem advisable, in the manner provided for service of a summons in a civil action. If the judge directs notice by publication, such notice shall be published three successive weeks in a legal newspaper of general circulation in such county.

Source:Laws 1943, c. 104, § 3, p. 349; R.S.1943, § 43-103; Laws 1983, LB 447, § 50; Laws 1985, LB 255, § 19; Laws 2009, LB35, § 27.

Cross References

Juveniles in need of assistance under Nebraska Juvenile Code, notice requirements, see section 43-297.

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

This section and sections 43-102 and 43-104, construed together, require that before a county court entertains a decision on the merits in an adoption proceeding, all those statutorily required to consent have done so. In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016).

43-104. Adoption; consent required; exceptions; petition requirements; private adoption; requirements.

(1) Except as otherwise provided in this section and in the Nebraska Indian Child Welfare Act, no adoption shall be decreed unless written consents thereto are filed in the county court of the county in which the person or persons desiring to adopt reside or in the county court in which the juvenile court having jurisdiction over the custody of the child is located and the written consents are executed by:

(a) The minor child, if over fourteen years of age; and

(b) Both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, the mother of a child born out of wedlock, or both the mother and father of a child born out of wedlock as determined pursuant to sections 43-104.08 to 43-104.24.

(2) A written consent or relinquishment for adoption under this section shall not be valid unless signed at least forty-eight hours after the birth of the child.

(3) A petition for adoption shall attest that, at the time of filing:

(a) There were no pending motions in any other court having jurisdiction over the minor child; and

(b) If a juvenile court has jurisdiction over the child, that adoption is the permanency goal in proceedings in juvenile court.

(4) Consent shall not be required of any parent:

(a) Who relinquished the child for adoption by a written instrument;

(b) Who abandoned the child for at least six months next preceding the filing of the adoption petition;

(d) Who is incapable of consenting.

(5) Consent shall not be required of a putative father who has failed to timely file:

(a) A Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.02 and, with respect to the absence of such filing, a certificate has been filed pursuant to section 43-104.04; or

(b) A petition pursuant to section 43-104.05 for the adjudication of such father's objection to the adoption and a determination of whether his consent to the adoption is required and the mother of the child has timely executed a valid relinquishment and consent to the adoption pursuant to such section.

(6) Consent shall not be required of an acknowledged or adjudicated father who has failed to timely file a petition pursuant to section 43-104.05 for the adjudication of such notice and a determination of whether his consent to the adoption is required and the mother of the child has timely executed a valid relinquishment and consent to the adoption pursuant to such section.

(7) Consent shall not be required of an acknowledged father, an adjudicated father, or a putative father who is not required to consent to the adoption pursuant to section 43-104.05 or 43-104.22.

(8) The validity of a relinquishment and consent for adoption is not affected by the fact that a relinquishing person is a minor.

(9)(a) In private adoptions not involving relinquishment of a child to the state or to a licensed child placement agency, a parent or parents who relinquish a child for adoption shall be provided legal counsel of their choice independent from that of the adoptive parent or parents. Such counsel shall be provided at the expense of the adoptive parent or parents prior to the execution of a written relinquishment and consent to adoption or execution of a communication and contact agreement under section 43-166, unless specifically waived in writing.

(b) In private adoptions and adoptions involving relinquishment of a child to a licensed child placement agency other than the state, a parent or parents contemplating relinquishment of a child for adoption shall be offered, at the expense of the adoptive parent or parents or the agency, at least three hours of professional counseling prior to executing a written relinquishment of parental rights or written consent to adoption. Such relinquishment or consent shall state whether the relinquishing parent or parents received or declined counseling.

Source:Laws 1943, c. 104, § 4(1), p. 350; R.S.1943, § 43-104; Laws 1951, c. 127, § 1, p. 546; Laws 1967, c. 248, § 1, p. 652; Laws 1971, LB 329, § 1; Laws 1973, LB 436, § 1; Laws 1975, LB 224, § 2; Laws 1983, LB 146, § 3; Laws 1984, LB 510, § 3; Laws 1985, LB 255, § 20; Laws 1988, LB 790, § 22; Laws 1995, LB 712, § 20; Laws 1996, LB 1296, § 19; Laws 1998, LB 1041, § 7; Laws 1999, LB 594, § 10; Laws 2002, LB 952, § 2; Laws 2003, LB 148, § 100; Laws 2007, LB247, § 5; Laws 2022, LB741, § 6.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

1. Abandonment

2. Miscellaneous

1. Abandonment

Evidence of a parent's conduct, either before or after the statutory period, may be considered because this evidence is relevant to a determination of whether the purpose and intent of that parent was to abandon his or her child or children. In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018).

The critical period of time during which abandonment must be shown is the 6 months immediately preceding the filing of the adoption petition. In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018).

Subsection (4) of this section does not apply to an acknowledged, legal father under another state's paternity determination. In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

It is clear that the district court is not to consider the issue of abandonment; the question of whether the parent did in fact abandon the child, for purposes of adoption, is exclusively for the county court. Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).

The critical period of time during which abandonment must be shown to eliminate the necessity for obtaining consent to adoption from a parent under this section is the 6 months immediately preceding the filing of the petition for adoption. In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990).

Abandonment for purposes of permitting substitute consent for adoption must be proved by clear and convincing evidence. In re Guardianship of Sain, 217 Neb. 96, 348 N.W.2d 435 (1984).

Although the critical period of time during which abandonment must be shown to eliminate the necessity of obtaining consent pursuant to this section is the six months immediately preceding the filing for adoption, evidence of a parent's conduct either before or after this period may be considered as relevant to a determination of whether the purpose and intent of that parent was to abandon the child or children. To prove abandonment in adoption proceedings, the evidence must clearly and convincingly show that the parent has acted toward the child in a manner evidencing a settled purpose to be rid of all parental obligations and to forego all parental rights, together with a complete repudiation of parenthood and an abandonment of parental rights and responsibilities. Where there has been a protracted period of totally unjustified failure to exercise parental functions, an isolated contact does not necessarily negate the inference that a person no longer wishes to act in the role of a parent to a child. In re Adoption of Simonton, 211 Neb. 777, 320 N.W.2d 449 (1982).

To warrant an adoption, it must clearly appear that the natural parents, if living, had abandoned the child for a period of at least six months. McCauley v. Stewart, 177 Neb. 759, 131 N.W.2d 174 (1964).

2. Miscellaneous

Under the Nebraska adoption statutes, a voluntary relinquishment is effective when a parent executes a written instrument and the Department of Health and Human Services or an agency, in writing, accepts responsibility for the child. In re Interest of Donald B. & Devin B., 304 Neb. 239, 933 N.W.2d 864 (2019).

This section and sections 43-102 and 43-103, construed together, require that before a county court entertains a decision on the merits in an adoption proceeding, all those statutorily required to consent have done so. In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016).

A finding of abandonment under subdivision (2)(b) of this section in an ongoing adoption proceeding is not a final, appealable order; such a finding does not terminate parental rights or standing in the proceedings, but merely eliminates the need for the abandoning parent's consent and authorizes the execution of substitute consent, and such a finding has no real and immediate effect on parental obligations, visitation, custody, or other matters pertaining to the parent's contact with the child during the pendency of the final judgment granting or denying the petition for adoption. In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

Pursuant to subsection (3) of this section, for an adoption to proceed, the consent of the biological father who has established a familial relationship with his child is required unless, under subsection (2) of this section, the party seeking adoption has established that the biological parent: (1) has relinquished the child for adoption by a written instrument, (2) has abandoned the child for at least six months next preceding the filing of the adoption petition, (3) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (4) is incapable of consenting. In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009).

The putative father provisions of this section do not apply to a previously adjudicated father. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

The consent granted by the district court pursuant to the provisions of this section does nothing more than permit the county court, as the tribunal having exclusive original jurisdiction over adoption matters, to entertain such proceedings. Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).

The signing of a consent to adoption does not, in itself, release the consenting parent from an obligation to support the child and the court's earlier opinion in Smith v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978), should not be read that way. Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980).

Consent for relinquishment executed by seventeen year old mother of child born out of wedlock is valid. Batt v. Nebraska Children's Home Society, 185 Neb. 124, 174 N.W.2d 88 (1970).

Adoption is permitted where parents have been deprived of custody of minor child by order of juvenile court. Krell v. Jenkins, 157 Neb. 554, 60 N.W.2d 613 (1953).

43-104.01. Child born out of wedlock; putative father registry; Department of Health and Human Services; duties.

(1) The Department of Health and Human Services shall establish a putative father registry. The department shall maintain such registry and shall record the names and addresses of (a) any person adjudicated by a court of this state or by a court of another state or territory of the United States to be the biological father of a child born out of wedlock if a certified copy of the court order is filed with the registry by such person or any other person, (b) any putative father who has filed with the registry, prior to the receipt of notice under sections 43-104.12 to 43-104.16, a Request for Notification of Intended Adoption with respect to such child, and (c) any putative father who has filed with the registry a Notice of Objection to Adoption and Intent to Obtain Custody with respect to such child.

(2) A Request for Notification of Intended Adoption or a Notice of Objection to Adoption and Intent to Obtain Custody filed with the registry shall include (a) the putative father's name, address, and social security number, (b) the name and last-known address of the mother, (c) the month and year of the birth or the expected birth of the child, (d) the case name, court name, and location of any Nebraska court having jurisdiction over the custody of the child, and (e) a statement by the putative father that he acknowledges liability for contribution to the support and education of the child after birth and for contribution to the pregnancy-related medical expenses of the mother of the child. The person filing the notice shall notify the registry of any change of address pursuant to procedures prescribed in rules and regulations of the department.

(3) A request or notice filed under this section or section 43-104.02 shall be admissible in any action for paternity and shall estop the putative father from denying paternity of such child thereafter.

(4) Any putative father who files a Request for Notification of Intended Adoption or a Notice of Objection to Adoption and Intent to Obtain Custody with the putative father registry may revoke such filing. Upon receipt of such revocation by the registry, the effect shall be as if no filing had ever been made.

(5) The department may develop information about the registry and may distribute such information, through its existing publications, to the news media and the public. The department may provide information about the registry to the Department of Correctional Services, which may distribute such information through its existing publications.

Source:Laws 1995, LB 712, § 21; Laws 1996, LB 1044, § 105; Laws 1999, LB 594, § 11; Laws 2007, LB247, § 6; Laws 2007, LB296, § 63; Laws 2022, LB741, § 7.

43-104.02. Child born out of wedlock; Notice of Objection to Adoption and Intent to Obtain Custody; filing requirements.

(1) A Notice of Objection to Adoption and Intent to Obtain Custody shall be filed with the putative father registry under section 43-104.01 on forms provided by the Department of Health and Human Services:

(a) At any time during the pregnancy and no later than ten business days after the birth of the child; or

(b) If the notice required by section 43-104.13 is provided after the birth of the child:

(i) At any time during the pregnancy and no later than ten business days after receipt of the notice provided under section 43-104.12; or

(ii) No later than ten business days after the last date of any published notice provided under section 43-104.14, whichever notice is earlier.

(2) Such notice shall be considered to have been filed if it is received by the Department of Health and Human Services, Office of Vital Records, putative father registry or postmarked prior to the end of the tenth business day as provided in this section.

Source:Laws 1975, LB 224, § 3; Laws 1995, LB 712, § 22; Laws 1996, LB 1044, § 106; Laws 1997, LB 752, § 97; Laws 2007, LB247, § 7; Laws 2007, LB296, § 64; Laws 2014, LB908, § 2; Laws 2022, LB741, § 8.

Annotations

Where the biological mother deliberately misrepresented or withheld information regarding the date of her child's birth to prevent the biological father from timely objecting to the adoption of the child, the biological mother could not use requirements in this section as a subterfuge for deception to prevent the biological father from objecting to the adoption. Jeremiah J. v. Dakota D., 285 Neb. 211, 826 N.W.2d 242 (2013).

A putative father who intends to claim paternity and obtain custody of a child born out of wedlock must file notice with the biological father registry and adjudicate his claim within 30 days. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

Section 43-102.05 requires a "claimant-father" to petition the county court where the child was born to adjudicate his claim of paternity and right to custody within 30 days of filing notice under this section. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

This section and section 43-104.05 do not apply to a putative father who has been previously determined to be the biological father. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

This section, by its very terms, has no application in a dispute between the biological father and mother of a child born out of wedlock. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

This section does not apply to a biological father opposing the adoption of his child who is no longer a newborn when the father had acknowledged and supported his child and established strong familial ties. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

This section requires "a person claiming to be the father of the child" to file notice of his intent to claim paternity and obtain custody with the biological father registry within 5 business days of the child's birth or published notification. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

Five-day filing requirement for paternity held constitutional as applied, because such requirement did not violate right of equal protection or procedural due process. Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d 740 (1996).

This section held unconstitutional as applied in this case. In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987).

Five-day claim provision does not apply to a dispute between the father and mother of a child born out of wedlock. White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987).

43-104.03. Child born out of wedlock; filing with putative father registry; department; notice; to whom given.

Within three days after the filing of a Request for Notification of Intended Adoption or a Notice of Objection to Adoption and Intent to Obtain Custody with the putative father registry pursuant to sections 43-104.01 and 43-104.02, the Department of Health and Human Services shall cause a certified copy of such request or notice to be mailed by certified mail to the mother or prospective mother of such child at the last-known address shown on the request or notice or an agent specifically designated in writing by the mother or prospective mother to receive such request or notice.

Source:Laws 1975, LB 224, § 4; Laws 1994, LB 1224, § 49; Laws 1995, LB 712, § 23; Laws 1996, LB 1044, § 107; Laws 1999, LB 594, § 12; Laws 2007, LB247, § 8; Laws 2007, LB296, § 65; Laws 2022, LB741, § 9.

43-104.04. Child born out of wedlock; failure to file notice; effect.

If a Notice of Objection to Adoption and Intent to Obtain Custody is not timely filed with the putative father registry pursuant to section 43-104.02, the mother of a child born out of wedlock or an agent specifically designated in writing by the mother may request, and the Department of Health and Human Services shall supply, a certificate that no such notice has been filed with the putative father registry. The filing of such certificate pursuant to section 43-102 shall eliminate the need or necessity of a consent or relinquishment for adoption by the putative father of such child.

Source:Laws 1975, LB 224, § 5; Laws 1995, LB 712, § 24; Laws 1996, LB 1044, § 108; Laws 1999, LB 594, § 13; Laws 2007, LB247, § 9; Laws 2007, LB296, § 66; Laws 2022, LB741, § 10.

Annotations

For an adoption to proceed, the consent of the biological father who has established a familial relationship with his child is required unless, under section 43-104(2), the party seeking adoption has established that the biological parent: (1) has relinquished the child for adoption by a written instrument, (2) has abandoned the child for at least six months next preceding the filing of the adoption petition, (3) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (4) is incapable of consenting. In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009).

43-104.05. Child born out of wedlock; notice; filed; petition for adjudication of paternity; trial; guardian ad litem; court; jurisdiction.

(1)(a) A putative, acknowledged, or adjudicated father objecting to a proposed adoption may file a petition objecting to the adoption and seeking a determination of whether the objecting father's consent to the proposed adoption is required. A putative father may only file such petition if he has timely filed a Notice of Objection to Adoption and Intent to Obtain Custody with the putative father registry pursuant to section 43-104.02.

(b) The petition shall be filed within forty-five days after the later of the child's birth or the objecting father's receipt of notice under sections 43-104.12 to 43-104.14.

(c)(i) Except as provided in subdivision (1)(c)(ii) of this section, the petition shall be filed in the county court in the county where such child was born or, if a juvenile court already has jurisdiction over the custody of the child, in the county court of the county in which such juvenile court is located.

(ii) If the child was not born in Nebraska, the petition shall be filed in the county court of the county where either the biological mother or objecting father resides.

(d) A timely petition objecting to the adoption must be filed by an objecting putative, acknowledged, or adjudicated father of a minor child born out of wedlock who is the subject of a proposed adoption.

(e) Such petition may be filed by and defended by a minor in the minor's own name.

(2) If a petition objecting to a proposed adoption is not filed within the deadline provided in subdivision (1)(b) of this section, and the mother of the child has executed a valid relinquishment and consent to the adoption within ninety days after the later of the birth of the child or the objecting father's receipt of notice under sections 43-104.12 to 43-104.14, the putative, acknowledged, or adjudicated father's consent to adoption of the child shall not be required, he is not entitled to any further notice of the adoption proceedings, his right to object to the adoption shall not be recognized thereafter in any court, and his parental rights to such child will be terminated upon entry of an adoption decree.

(3) After the timely filing of a petition objecting to a proposed adoption, the court shall set a trial date upon proper notice to the parties not less than twenty nor more than thirty days after the date of such filing. If the mother contests the objecting father's claim of paternity, the court shall order DNA testing to establish whether the objecting father is the biological father. The court shall assess the costs of such testing between the parties in an equitable manner. Whether the objecting father's consent to the adoption is required shall be determined pursuant to section 43-104.22, except that such consent is not required if the objecting father is not the biological father. The court shall appoint a guardian ad litem to represent the best interests of the child.

(4)(a) The county court or juvenile court having jurisdiction over the custody of the child shall have exclusive jurisdiction over proceedings under this section from the date of notice provided under section 43-104.12 or the last date of published notice under section 43-104.14, whichever notice is earlier, until thirty days after the conclusion of proceedings under this section, including appeals, unless such jurisdiction is transferred under subdivision (b) of this subsection.

(b) Except as provided in subdivision (4)(c) of this section, the court shall, upon the motion of any party, transfer the case to the district court for further proceedings on the matters of custody, visitation, and child support with respect to such child if:

(i) Such court determines under section 43-104.22 that the consent of the objecting father is required for adoption of the minor child and the objecting father refuses such consent; or

(ii) The mother of the child, within ninety days after the conclusion of proceedings under this section, including appeals, has not executed a valid relinquishment and consent to the adoption.

Source:Laws 1975, LB 224, § 6; Laws 1995, LB 712, § 25; Laws 1998, LB 1041, § 8; Laws 1999, LB 594, § 14; Laws 2007, LB247, § 10; Laws 2022, LB741, § 11.

Annotations

1. Jurisdiction versus venue

2. Deadlines

3. Miscellaneous

1. Jurisdiction versus venue

Subsection (1) of this section details how a party goes about commencing an action for paternity and includes how venue of an action is determined. Peterson v. Jacobitz, 309 Neb. 486, 961 N.W.2d 258 (2021).

Subsection (4) of this section deals with the timing and duration of a court's authority and does not confer jurisdiction. Peterson v. Jacobitz, 309 Neb. 486, 961 N.W.2d 258 (2021).

A petition to adjudicate paternity filed pursuant to this section is a matter of adoption over which the district courts have no subject matter jurisdiction. Armour v. L.H., 259 Neb. 138, 608 N.W.2d 599 (2000).

Subsection (1) of this section specifies the appropriate venue for an objection to adoption to be litigated and is not a statute conferring jurisdiction. Peterson v. Jacobitz, 29 Neb. App. 486, 955 N.W.2d 329 (2021).

Subsection (1) of this section specifies the proper venue for an objection to adoption. Peterson v. Jacobitz, 29 Neb. App. 486, 955 N.W.2d 329 (2021).

2. Deadlines

This section requires a "claimant-father" to petition the county court where the child was born to adjudicate his claim of paternity and right to custody within 30 days of filing notice under section 43-104.02. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

Although under this section a father who fails to petition for an adjudication of paternity in county court within 30 days after filing his notice of intent to claim paternity would be precluded from claiming paternity in an adoption proceeding, such father would not be precluded from seeking to establish paternity under the paternity statutes in district court where there is no consent or relinquishment by the mother and no adoption proceeding is pending. Bohaboj v. Rausch, 272 Neb. 394, 721 N.W.2d 655 (2006).

The 30-day filing requirement of this section does not facially violate substantive due process. In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001).

3. Miscellaneous

Subsection (3) of this section does not authorize a county court to disestablish an acknowledged father's parental rights under another state's paternity determination. In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

Section 43-104.02 and this section do not apply to a putative father who has been previously determined to be the biological father. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

43-104.06. Repealed. Laws 1995, LB 712, § 31.

43-104.07. Child born in a foreign country; requirements.

The petition for adoption of a child born in a foreign country shall be accompanied by: (1) A document or documents from a court, official department, or government agency of the country of origin stating that the parent has consented to the adoption, stating that the parental rights of the parents of the child have been terminated, or stating that the child to be adopted has been abandoned or relinquished by the natural parents and that the child is to immigrate to the United States for the purpose of adoption; and (2) written consent to the adoption of the child from a child placement agency licensed by the Department of Health and Human Services or the agency's duly authorized representative which placed the child with the adopting person or persons. The consent shall be signed and acknowledged before an officer authorized to acknowledge deeds in the state where the consent is signed and shall not require a witness.

Any document in a foreign language shall be translated into English by the Department of State or by a translator who shall certify the accuracy of the translation.

A guardian shall not be required to be appointed to give consent to the adoption of any child born in a foreign country when the consent requirements of this section have been met.

Source:Laws 1983, LB 146, § 2; Laws 1996, LB 1044, § 109; Laws 1997, LB 307, § 19.

43-104.08. Child born out of wedlock; identify and inform biological father.

Whenever a child is claimed to be born out of wedlock and the biological mother contacts an adoption agency or attorney to relinquish her rights to the child, or the biological mother joins in a petition for adoption to be filed by her spouse, the agency or attorney contacted shall attempt to establish the identity of the biological father and further attempt to inform the biological father of his rights, including the right to object to the adoption and the procedure and required timing to object, and his right to execute a relinquishment and consent to adoption, or a denial of paternity and waiver of rights, in the form mandated by section 43-106, pursuant to sections 43-104.08 to 43-104.24.

Source:Laws 1995, LB 712, § 1; Laws 2007, LB247, § 11; Laws 2022, LB741, § 12.

43-104.09. Child born out of wedlock; biological mother; affidavit; form.

In all cases of adoption of a minor child born out of wedlock, the biological mother, or an individual acting on behalf of the biological mother and who possesses information provided by the biological mother if the biological mother is unavailable due to death, incapacity, abandonment, or termination of parental rights, shall complete and sign an affidavit in writing and under oath. The affidavit shall be completed and signed before or at the time of execution of the consent or relinquishment and shall be filed with the court prior to the hearing on the petition for adoption. If the biological mother is under the age of nineteen, the biological mother may sign the affidavit despite her minority or the affidavit may be completed and signed by the agency or attorney representing the biological mother based upon information provided by the biological mother. The affidavit shall be in substantially the following form:

AFFIDAVIT OF IDENTIFICATION

I, .................., the mother of a child, state under oath or affirm as follows:

(1) My child was born, or is expected to be born, on the ....... day of ............, ............, at ................., in the State of ................ .

(2) I reside at ................., in the City or Village of ..................., County of .................., State of ................ .

(3) I am of the age of .......... years, and my date of birth is .................... .

(4) I acknowledge that I have been asked to identify the father of my child.

(5) (CHOOSE ONE)

(5A) I know and am identifying the biological father (or possible biological fathers) as follows:

The name of the biological father is ................ .

His last-known home address is ....................... .

His last-known work address is ....................... .

He is .......... years of age, or he is deceased, having died on or about the ............. day of ............, ............, at ........................., in the State of .................... .

He has been adjudicated to be the biological father by the ..................... Court of ................ county, State of .................., case name ..................., docket number ................ .

He ... has ... has not acknowledged paternity in court or in connection with the child's birth certificate.

He ... has ... has not established a familial relationship with the child.

(For other possible biological fathers, please use additional sheets of paper as needed.)

(5B) I am unwilling or unable to identify the biological father (or possible biological fathers). I do not wish or I am unable to name the biological father of the child for the following reasons:

.......... Conception of my child occurred as a result of sexual assault or incest

.......... Providing notice to the biological father of my child would threaten my safety or the safety of my child

.......... Other reason: .............................. .

(6) If the biological mother is unable to name the biological father, the physical description of the biological father (or possible biological fathers) and other information which may assist in identifying him, including the city or county and state where conception occurred:

..................................................

(use additional sheets of paper as needed).

(7) Under penalty of perjury, the undersigned certifies that the statements set forth in this affidavit are true and correct.

(8) I have read this affidavit and have had the opportunity to review and question it. It was explained to me by ....................... .

I am signing it as my free and voluntary act and understand the contents and the effect of signing it.

Dated this ...... day of ......., ...... .

(Acknowledgment)

...........................

(Signature)

Source:Laws 1995, LB 712, § 2; Laws 2007, LB247, § 12; Laws 2022, LB741, § 13.

43-104.10. Child born out of wedlock; agency or attorney; duty to inform biological mother.

The agency or attorney representing the biological mother shall inform the mother of the legal and medical need to determine, whenever possible, the paternity of the child prior to an adoption and that her failure or refusal to accurately identify the biological father or possible biological fathers could threaten the legal validity of any adoptive placement of the child.

Source:Laws 1995, LB 712, § 3.

43-104.11. Child born out of wedlock; father's relinquishment and consent; when effective.

If the biological mother's affidavit, required by section 43-104.09, identifies only one possible biological father of the child and states that there are no other possible biological fathers of the child, and if the named father executes a valid relinquishment and consent to adoption of the child in the form mandated by section 43-106 or executes a denial of paternity and waiver of rights in the form mandated by section 43-106, the court may enter a decree of adoption pursuant to section 43-109 without regard to sections 43-104.12 to 43-104.16. A named biological father's relinquishment and consent or a named biological father's waiver of rights is irrevocable upon signing and is not voidable for any period after signing. Such relinquishment and consent or such waiver of rights may only be challenged on the basis of fraud or duress for up to six months after signing.

Source:Laws 1995, LB 712, § 4; Laws 1999, LB 594, § 15.

Annotations

Other than the exceptions to the notification requirements, unless the biological father has executed "a valid relinquishment and consent . . . or . . . a denial of paternity and waiver of rights," the court may not enter a decree of adoption without determining that proper notification of parental rights has been provided. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

43-104.12. Child born out of wedlock; agency or attorney; duty to inform biological father.

In order to attempt to inform the biological father or possible biological fathers, whether putative, acknowledged, or adjudicated, of the right to execute a relinquishment and consent to adoption or a denial of paternity and waiver of rights, the agency or attorney representing the biological mother shall notify, by personal service of process or by registered or certified mail, restricted delivery, return receipt requested:

(1) Any acknowledged father or adjudicated father;

(2) Any person who has filed a Request for Notification of Intended Adoption or a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to sections 43-104.01 and 43-104.02;

(3) Any person who is recorded on the child's birth certificate as the child's father;

(4) Any person who might be the biological father of the child who was openly living with the child's biological mother within the twelve months prior to the birth of the child;

(5) Any person who has been identified as the biological father or possible biological father of the child by the child's biological mother pursuant to section 43-104.09;

(6) Any person who was married to the child's biological mother within six months prior to the birth of the child and prior to the execution of the relinquishment; and

(7) Any other person who the agency or attorney representing the biological mother may have reason to believe may be the biological father of the child.

Source:Laws 1995, LB 712, § 5; Laws 1999, LB 594, § 16; Laws 2007, LB247, § 13; Laws 2022, LB741, § 14.

43-104.13. Child born out of wedlock; notice to biological father; contents.

The notice sent by the agency or attorney pursuant to section 43-104.12 shall be served sufficiently in advance of the birth of the child, whenever possible, to allow compliance with subdivision (1)(a) of section 43-104.02 and shall state:

(1) The biological mother's name, the fact that she is pregnant or has given birth to the child, and the expected or actual date of delivery;

(2) That the child has been relinquished by the biological mother, that she intends to execute a relinquishment and consent to adoption, or that the biological mother has joined or plans to join in a petition for adoption to be filed by her spouse;

(3) That the person being notified has been identified as a possible biological father of the child, whether putative, acknowledged, or adjudicated;

(4) That the person being notified may have certain rights with respect to such child if he is in fact the biological father;

(5) That the person being notified has the right to (a) deny paternity, (b) waive any parental rights he may have, (c) relinquish and consent to adoption of the child, (d) file a Notice of Objection to Adoption and Intent to Obtain Custody any time during the pregnancy or as late as ten business days after birth pursuant to section 43-104.02 if he is a putative father, and (e) object to the adoption in court within forty-five days after the later of receipt of notice under this section or the birth of the child if he is an acknowledged or adjudicated father;

(6) That to deny paternity, to waive his parental rights, or to relinquish and consent to the adoption, the person being notified must contact the undersigned agency or attorney representing the biological mother, and that if he wishes to object to the adoption and seek custody of the child he should seek legal counsel from his own attorney immediately; and

(7) That if the person being notified is the biological father and if the child is not relinquished for adoption, he has a duty to contribute to the support and education of the child and to the pregnancy-related expenses of the mother and a right to seek a court order for custody, parenting time, visitation, or other access with the child.

The agency or attorney representing the biological mother may enclose with the notice a document which is an admission or denial of paternity and a waiver of rights by the person being notified, which such person may choose to complete, in the form mandated by section 43-106, and return to the agency or attorney.

Source:Laws 1995, LB 712, § 6; Laws 2007, LB247, § 14; Laws 2007, LB554, § 38; Laws 2022, LB741, § 15.

Annotations

This section is facially constitutional. In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001).

43-104.14. Child born out of wedlock; agency or attorney; duty to notify biological father by publication; when.

(1) If the agency or attorney representing the biological mother is unable through reasonable efforts to locate and serve notice on the biological father or possible biological fathers as contemplated in sections 43-104.12 and 43-104.13, the agency or attorney shall notify the biological father or possible biological fathers by publication.

(2) The publication shall be made once a week for three consecutive weeks in a legal newspaper of general circulation in the Nebraska county or county of another state which is most likely to provide actual notice to the biological father. The publication shall include:

(a) The first name or initials of the father or possible father or the entry "John Doe, real name unknown", if applicable;

(b) A description of the father or possible father if his first name is or initials are unknown;

(d) The date of birth or expected birth of the child;

(e) That he has been identified as the biological father or possible biological father of a child whom the biological mother currently intends to place for adoption and the approximate date that placement will occur;

(f) That he has the right to (i) deny paternity, (ii) waive any parental rights he may have, (iii) relinquish and consent to adoption of the child, (iv) file a Notice of Objection to Adoption and Intent to Obtain Custody any time during the pregnancy or as late as ten business days after birth pursuant to section 43-104.02 if he is a putative father, or (v) object to the adoption in court within forty-five days after the later of receipt of notice under this section or the birth of the child if he is an acknowledged or adjudicated father;

(g) That in order to deny paternity, waive his parental rights, relinquish and consent to the adoption, or receive additional information to determine whether he is the father of the child in question, he must contact the undersigned agency or attorney representing the biological mother; and

(h) That if he wishes to object to the adoption and seek custody of the child, he must seek legal counsel from his own attorney immediately.

Source:Laws 1995, LB 712, § 7; Laws 2007, LB247, § 15; Laws 2022, LB741, § 16.

43-104.15. Child born out of wedlock; notification to biological father; exceptions.

The notification procedure set forth in sections 43-104.12 to 43-104.14 shall, whenever possible, be completed prior to a child being placed in an adoptive home. If the information provided in the biological mother's affidavit prepared pursuant to section 43-104.09 presents clear evidence that providing notice to a biological father or possible biological father as contemplated in sections 43-104.12 to 43-104.14 would be likely to threaten the safety of the biological mother or the child or that conception was the result of sexual assault or incest, notice is not required to be given. If the biological father or possible biological fathers are not given actual or constructive notice prior to the time of placement, the agency or attorney shall give the adoptive parents a statement of legal risk indicating the legal status of the biological father's parental rights as of the time of placement, and the adoptive parents shall sign a statement of legal risk acknowledging their acceptance of the placement, notwithstanding the legal risk.

Source:Laws 1995, LB 712, § 8.

Annotations

This section permits the State to approve out-of-state placement with prospective adoptive parents without the biological father's consent or notification if the prospective adoptive parents have signed an at-risk placement form. Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).

43-104.16. Child born out of wedlock; notice requirements; affidavit by agency or attorney.

In all cases involving the adoption of a minor child born out of wedlock, the agency or attorney representing the biological mother shall execute an affidavit stating that due diligence was used to identify and give actual or constructive notice to the biological father or possible biological fathers of the child and stating the methods used to attempt to identify and give actual or constructive notice to those persons or the reason why no attempts were made to identify and notify those persons. The affidavit shall be filed in the adoption proceeding prior to the hearing on the petition for adoption.

Source:Laws 1995, LB 712, § 9; Laws 2022, LB741, § 17.

43-104.17. Child born out of wedlock; petition; evidence of compliance required; notice to biological father; when.

In all cases of adoption of a minor child born out of wedlock, the petition for adoption shall specifically allege compliance with sections 43-104.08 to 43-104.16, and all documents which are evidence of such compliance shall be filed with the court prior to the hearing on the petition. No notice of the filing of the petition to finalize or the hearing on the petition shall be given to a biological father or putative biological father who (1) executed a valid relinquishment and consent or a valid denial of paternity and waiver of rights pursuant to section 43-104.11, (2) was a putative father provided notice under sections 43-104.12 to 43-104.14 and who failed to timely file a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.02, (3) was a putative, acknowledged, or adjudicated father who failed to timely file a petition objecting to the adoption under section 43-104.05, or (4) is not required to consent to the adoption pursuant to proceedings conducted under section 43-104 or 43-104.22.

Source:Laws 1995, LB 712, § 10; Laws 2007, LB247, § 16; Laws 2022, LB741, § 18.

43-104.18. Child born out of wedlock; failure to establish compliance with notice requirements; court powers.

If a petition for adoption is filed and fails to establish substantial compliance with sections 43-104.08 to 43-104.16, the court shall receive evidence by affidavit of the facts and circumstances of the biological mother's relationship with the biological father or possible biological fathers at the time of conception of the child and at the time of the biological mother's relinquishment and consent to the adoption of the child, including any evidence that providing notice to a biological father or possible biological father would be likely to threaten the safety of the biological mother or the child or that the conception was the result of sexual assault or incest. If, under the facts and circumstances presented, the court finds that the agency or attorney representing the biological mother did not exercise due diligence in complying with sections 43-104.08 to 43-104.16, or if the court finds that there is no credible evidence that providing notice to a biological father or possible biological father would be likely to threaten the safety of the biological mother or the child or that the conception was the result of sexual assault or incest, the court shall order the attorney or agency to exercise due diligence in complying with sections 43-104.08 to 43-104.16.

Source:Laws 1995, LB 712, § 11; Laws 2022, LB741, § 19.

Annotations

The county is not obligated to pay the fee of a guardian ad litem appointed for a biological parent in a private adoption proceeding to which the county is not a party. In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).

The fact that the Legislature expressly obligated counties to pay guardian ad litem fees in some statutes, but not in this section, reflects a legislative intent that the county cannot be ordered to pay the fees of a guardian ad litem appointed for a biological father in a private adoption case. In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).

43-104.19. Repealed. Laws 2022, LB741, § 56.

43-104.20. Repealed. Laws 2022, LB741, § 56.

43-104.21. Repealed. Laws 2022, LB741, § 56.

43-104.22. Child born out of wedlock; hearing; paternity of child; father's consent not required; when; determination of custody.

At any hearing to determine the parental rights of an acknowledged father, an adjudicated father, or a putative father of a minor child born out of wedlock and whether such father's consent is required for the adoption of such child, the county court or juvenile court having jurisdiction shall receive evidence with regard to the actual paternity of the child, if contested. The court shall determine that such father's consent is not required for a valid adoption of the child upon a finding of one or more of the following:

(1) The father abandoned or neglected the child after having knowledge of the child's birth;

(2) The father is not a fit, proper, and suitable custodial parent for the child;

(3) The father had knowledge of the child's birth and failed to provide reasonable financial support for the mother or child;

(4) The father abandoned the mother without reasonable cause and with knowledge of the pregnancy;

(5) The father had knowledge of the pregnancy and failed to provide reasonable support for the mother during the pregnancy;

(6) The child was conceived as a result of a nonconsensual sex act or an incestual act;

(7) Notice was provided pursuant to sections 43-104.12 to 43-104.14 and the putative father failed to timely file a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.02;

(8) The acknowledged father, adjudicated father, or putative father failed to timely file a petition objecting to the adoption pursuant to section 43-104.05;

(9) The father executed a valid relinquishment or consent to adoption; or

(10) The man whether an acknowledged father, an adjudicated father, or a putative father, is not, in fact, the biological father of the child.

The court shall determine the custody of the child according to the best interest of the child, weighing the superior rights of a biological parent who has been found to be a fit, proper, and suitable parent against any detriment the child would suffer if removed from the custody of persons with whom the child has developed a substantial relationship.

Source:Laws 1995, LB 712, § 15; Laws 1999, LB 594, § 17; Laws 2007, LB247, § 17; Laws 2022, LB741, § 20.

Annotations

An acknowledged, legal father who has the right to consent to an adoption under another state's paternity determination is not a "man" within the meaning of subsection (11) of this section. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016); In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

Subsection (11) of this section does not authorize a county court to disestablish an acknowledged father's parental rights under another state's paternity determination. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016); In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

The effect of a finding of abandonment is that the putative biological father has no further standing to raise objections in the matter of the adoption. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).

Pursuant to subdivision (7) of this section, for an adoption to proceed, the consent of the biological father who has established a familial relationship with his child is required unless, under section 43-104(2), the party seeking adoption has established that the biological parent: (1) has relinquished the child for adoption by a written instrument, (2) has abandoned the child for at least six months next preceding the filing of the adoption petition, (3) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (4) is incapable of consenting. In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009).

Subsection (7) of this section does not apply to a father who has been adjudicated the child's father in a paternity action. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

43-104.23. Child born out of wedlock; decree finalizing adoption without biological father's notification; when; appeal.

(1) The court shall enter a decree finalizing the adoption of the child if, after viewing the evidence submitted to support a petition for adoption, the court determines that:

(a) No biological father can be identified;

(b) No identified father can be notified without likely threat to the safety of the biological mother or the child; or

(c) That there has been due diligence and substantial compliance with sections 43-104.08 to 43-104.16 and that no biological father has timely filed under section 43-104.02 or 43-104.05.

(2) Subject to the disposition of an appeal, upon the expiration of thirty days after a decree is issued under this section, the decree shall not be reversed, vacated, or modified on the basis of fraud, misrepresentation, or failure to provide notice under sections 43-104.12 to 43-104.14.

Source:Laws 1995, LB 712, § 16; Laws 2022, LB741, § 21.

43-104.24. Child born out of wedlock; proceedings; court priority.

All proceedings pursuant to sections 43-104.08 to 43-104.23 have the highest priority and shall be advanced on the court docket to provide for their earliest practical disposition. An adjournment or continuance of a proceeding pursuant to sections 43-104.08 to 43-104.23 shall not be granted without a showing of good cause.

Source:Laws 1995, LB 712, § 17.

43-104.25. Repealed. Laws 2022, LB741, § 56.

43-105. Substitute consents.

(1) If consent is not required of both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, or the mother or mother and father of a child born out of wedlock, because of the provisions of subdivision (1)(b) of section 43-104, substitute consents shall be filed as follows:

(a) Consent to the adoption of a minor child who has been committed to the Department of Health and Human Services may be given by the department or its duly authorized agent in accordance with section 43-906;

(b) When a parent has relinquished a minor child for adoption to any child placement agency licensed or approved by the department or its duly authorized agent, consent to the adoption of such child may be given by such agency; and

(c) When consent cannot be given as provided in section 43-104, consent shall be given by the guardian or guardian ad litem of such minor child appointed by a court, which consent shall be authorized by the court having jurisdiction of such guardian or guardian ad litem.

(2) Substitute consent provisions of this section do not apply to a biological father whose consent is not required under section 43-104.22 or subsection (5) or (6) of section 43-104.

Source:Laws 1943, c. 104, § 4(2), p. 350; R.S.1943, § 43-105; Laws 1967, c. 248, § 2, p. 653; Laws 1988, LB 790, § 23; Laws 1989, LB 22, § 2; Laws 1995, LB 712, § 26; Laws 1996, LB 1044, § 110; Laws 1996, LB 1155, § 8; Laws 1998, LB 1041, § 9; Laws 2007, LB247, § 19; Laws 2022, LB741, § 22.

Cross References

Terminated parental rights, substitute consents, see section 43-293.

Annotations

A finding of abandonment under this section should not be made without first appointing a guardian. Abandonment, for purposes of permitting substitute consent, must be proven by clear and convincing evidence. In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982).

Under subsection (3) of this section, the county court is the proper court for authorizing consent of a guardian appointed under former sections 38-101 to 38-120 or section 43-111.01, as the authority to appoint a guardian under those sections lies exclusively in the county court, while the juvenile court would be the proper court for a guardian appointed under sections 43-201 to 43-227 since the juvenile court has exclusive jurisdiction to appoint a guardian under these sections. However, the jurisdiction of the juvenile court arises only if there has been a determination, prior to the adoption proceedings, that the child is dependent and neglected; otherwise the matter remains exclusively in the jurisdiction of the county court. Section 38-114 remains as the legislative bridge between the reference to former sections 38-101 to 38-120 in this section and the provisions of sections 30-2601 to 30-2616. A guardian appointed for a minor child for whom adoption is being sought by the use of substitute consent pursuant to this section should be an independent party not directly interested in the outcome of the adoption proceedings. In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982).

43-106. Relinquishments and consents; signature; witnesses; acknowledgment.

Relinquishments and consents required to be given under sections 43-104 and 43-105 must be acknowledged before an officer authorized to acknowledge deeds in this state and signed in the presence of at least one witness, in addition to the officer.

Source:Laws 1943, c. 104, § 4(3), p. 351; R.S.1943, § 43-106; Laws 1951, c. 128, § 1, p. 547; Laws 1965, c. 233, § 1, p. 678; Laws 2007, LB247, § 20; Laws 2022, LB741, § 23.

Annotations

Acknowledgment held valid, no particular form of acknowledgment being specified. Batt v. Nebraska Children's Home Society, 185 Neb. 124, 174 N.W.2d 88 (1970).

Consent to adoption must be witnessed and acknowledged. McCauley v. Stewart, 177 Neb. 759, 131 N.W.2d 174 (1964).

43-106.01. Relinquishment; relief from parental duties; no impairment of right to inherit.

When a child shall have been relinquished by written instrument, as provided by sections 43-104 and 43-106, to the Department of Health and Human Services or to a licensed child placement agency and the agency has, in writing, accepted full responsibility for the child, the person so relinquishing shall be relieved of all parental duties toward and all responsibilities for such child and have no rights over such child. Nothing contained in this section shall impair the right of such child to inherit.

Source:Laws 1965, c. 234, § 1, p. 679; Laws 1996, LB 1044, § 111.

Annotations

1. Revocation of relinquishment

2. Miscellaneous

1. Revocation of relinquishment

Relinquishment of a child may be effectively revoked within a reasonable time after its execution before the child placement agency has, in writing, accepted full responsibility for the child. Kellie v. Lutheran Family & Social Service, 208 Neb. 767, 305 N.W.2d 874 (1981).

A voluntary relinquishment in accordance herewith, and accepted, is not revocable. Kane v. United Catholic Social Services, 187 Neb. 467, 191 N.W.2d 824 (1971).

A duly executed revocation of a relinquishment and consent to adoption delivered to a licensed child placement agency within a reasonable time after execution of the relinquishment and before the agency has, in writing, accepted full responsibility for the child, as required by statute, is effective to invalidate the original relinquishment and consent. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).

There are four requirements for a valid and effective revocation of a relinquishment of parental rights: (1) There must be a duly executed revocation of a relinquishment, (2) the revocation must be delivered to a licensed child placement agency or the Nebraska Department of Health and Human Services, (3) delivery of the revocation must be within a reasonable time after execution of the relinquishment, and (4) delivery of the revocation must occur before the agency has, in writing, accepted full responsibility for the child. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).

When a parent's attempted revocation of his or her relinquishment of parental rights is not done in a reasonable time after the relinquishment, the relinquishment becomes irrevocable. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).

2. Miscellaneous

A court cannot accept a voluntary relinquishment of a child prior to an adjudication and an adoption of a permanency plan. In re Interest of Cornelius K., 280 Neb. 291, 785 N.W.2d 849 (2010).

A juvenile court may order the Department of Health and Human Services to accept a voluntary relinquishment of parental rights when a child has been adjudicated and adoption is the permanency objective. In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010).

In an agency adoption, the rights of the relinquishing parent are terminated when the agency accepts responsibility for the child in writing, and once the agency accepts such responsibility, the agency retains custody until such time as the child is actually adopted; whereas in a private adoption, the child is relinquished directly into the hands of the prospective adoptive parents without interference by the state or a private agency, and the relinquishing parent's rights are not totally extinguished until the child has been formally adopted by the prospective parents. Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998).

The statute requires both a written relinquishment and a written acceptance. D.S. v. United Catholic Soc. Servs., 227 Neb. 654, 419 N.W.2d 531 (1988).

The legislative intent as to the finality of a child relinquishment is not the same in the case of a private placement, governed by section 43-111, R.R.S.1943, as it is in an agency placement, governed by section 43-106.01, R.R.S.1943. Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980).

Child which received inheritance from adoptive parents may also receive inheritance from natural parents. Wulf v. Ibsen, 184 Neb. 314, 167 N.W.2d 181 (1969).

The rights of the relinquishing parent are terminated when the Nebraska Department of Health and Human Services, or a licensed child placement agency, accepts responsibility for the child in writing. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).

43-106.02. Relinquishment of child; presentation of nonconsent form required.

Prior to the relinquishment of a child for adoption, a representative of the Department of Health and Human Services or of any child placement agency licensed by the department or an attorney and a witness shall present a copy or copies of the nonconsent form as provided in section 43-146.06 to the relinquishing parent or parents and explain the effects of signing such form.

Source:Laws 1988, LB 372, § 3; Laws 1996, LB 1044, § 112; Laws 1997, LB 307, § 20.

43-107. Investigation by Department of Health and Human Services; adoptive home studies required; when; medical history; required; contents; exceptions; report required; case file; access; department; duties.

(1)(a) For adoption placements occurring or in effect prior to January 1, 1994, upon the filing of a petition for adoption, the county judge shall, except in the adoption of children by stepparents when the requirement of an investigation is discretionary, request the Department of Health and Human Services or any child placement agency licensed by the department to examine the allegations set forth in the petition and to ascertain any other facts relating to such minor child and the person or persons petitioning to adopt such child as may be relevant to the propriety of such adoption, except that the county judge shall not be required to request such an examination if the judge determines that information compiled in a previous examination or study is sufficiently current and comprehensive. Upon the request being made, the department or other licensed agency shall conduct an investigation and report its findings to the county judge in writing at least one week prior to the date set for hearing.

(b)(i) For adoption placements occurring on or after January 1, 1994, a preplacement adoptive home study shall be filed with the court prior to the hearing required in section 43-103, which study is completed by the Department of Health and Human Services or a licensed child placement agency within one year before the date on which the adoptee is placed with the petitioner or petitioners and indicates that the placement of a child for the purpose of adoption would be safe and appropriate.

(ii) An adoptive home study shall not be required when the petitioner is a stepparent of the adoptee unless required by the court. An adoptive home study may be waived by the court upon a showing of good cause by the petitioner when the petitioner is a biological grandparent or a step-grandparent who is married to the biological grandparent at the time of the adoption if both are adopting the child. For all petitions filed on or after January 1, 1994, the judge shall order the petitioner or his or her attorney to request the Nebraska State Patrol to file a national criminal history record information check by submitting the request accompanied by two sets of fingerprint cards or an equivalent electronic submission and the appropriate fee to the Nebraska State Patrol for a Federal Bureau of Investigation background check and to request the department to conduct and file a check of the central registry created in section 28-718 for any history of the petitioner of behavior injurious to or which may endanger the health or morals of a child. An adoption decree shall not be issued until such records are on file with the court. The petitioner shall pay the cost of the national criminal history record information check and the check of the central registry.

(iii) The placement of a child for foster care made by or facilitated by the department or a licensed child placement agency in the home of a person who later petitions the court to adopt the child shall be exempt from the requirements of a preplacement adoptive home study. The petitioner or petitioners who meet such criteria shall have a postplacement adoptive home study completed by the department or a licensed child placement agency and filed with the court at least one week prior to the hearing for adoption.

(iv) A voluntary placement for purposes other than adoption made by a parent or guardian of a child without assistance from an attorney, physician, or other individual or agency which later results in a petition for the adoption of the child shall be exempt from the requirements of a preplacement adoptive home study. The petitioner or petitioners who meet such criteria shall have a postplacement adoptive home study completed by the department or a licensed child placement agency and filed with the court at least one week prior to the hearing for adoption.

(v) The adoption of an adult child as provided in subsection (2) of section 43-101 shall be exempt from the requirements of an adoptive home study unless the court specifically orders otherwise. The court may order an adoptive home study, a background investigation, or both if the court determines that such would be in the best interests of the adoptive party or the person to be adopted.

(vi) Any adoptive home study required by this section shall be conducted by the department or a licensed child placement agency at the expense of the petitioner or petitioners unless such expenses are waived by the department or licensed child placement agency. The department or licensed agency shall determine the fee or rate for the adoptive home study.

(vii) The preplacement or postplacement adoptive home study shall be performed as prescribed in rules and regulations of the department and shall include at a minimum an examination into the facts relating to the petitioner or petitioners as may be relevant to the propriety of such adoption. Such rules and regulations shall require an adoptive home study to include a national criminal history record information check and a check of the central registry created in section 28-718 for any history of the petitioner or petitioners of behavior injurious to or which may endanger the health or morals of a child.

(2) Upon the filing of a petition for adoption, the judge shall require that a complete medical history be provided on the child, except that in the adoption of a child by a stepparent, biological grandparent, or step-grandparent who is married to the biological grandparent at the time of the adoption if both are adopting the child, the provision of a medical history shall be discretionary. On and after August 27, 2011, the complete medical history or histories required under this subsection shall include the race, ethnicity, nationality, Indian tribe when applicable and in compliance with the Nebraska Indian Child Welfare Act, or other cultural history of both biological parents, if available. A medical history shall be provided, if available, on the biological mother and father and their biological families, including, but not limited to, siblings, parents, grandparents, aunts, and uncles, unless the child is foreign born or was abandoned. The medical history or histories shall be reported on a form provided by the department and filed along with the report of adoption as provided by section 71-626. If the medical history or histories do not accompany the report of adoption, the department shall inform the court and the State Court Administrator. The medical history or histories shall be made part of the court record. After the entry of a decree of adoption, the court shall retain a copy and forward the original medical history or histories to the department. This subsection shall only apply when the relinquishment or consent for an adoption is given on or after September 1, 1988.

(3) After the filing of a petition for adoption and before the entry of a decree of adoption for a child who is committed to the Department of Health and Human Services, the person or persons petitioning to adopt the child shall be given the opportunity to read the case file on the child maintained by the department or its duly authorized agent. The department shall not include in the case file to be read any information or documents that the department determines cannot be released based upon state statute, federal statute, federal rule, or federal regulation. The department shall provide a document for such person's or persons' signatures verifying that he, she, or they have been given an opportunity to read the case file and are aware that he, she, or they can review the child's file at any time following finalization of the adoption upon making a written request to the department. The department shall file such document with the court prior to the entry of a decree of adoption in the case.

Source:Laws 1943, c. 104, § 5, p. 351; R.S.1943, § 43-107; Laws 1978, LB 566, § 1; Laws 1980, LB 681, § 1; Laws 1988, LB 372, § 1; Laws 1988, LB 301, § 7; Laws 1989, LB 231, § 1; Laws 1993, LB 16, § 2; Laws 1996, LB 1044, § 113; Laws 1997, LB 307, § 21; Laws 1998, LB 1041, § 10; Laws 1999, LB 594, § 18; Laws 2004, LB 1005, § 4; Laws 2007, LB296, § 67; Laws 2011, LB94, § 1; Laws 2011, LB124, § 1; Laws 2012, LB737, § 1; Laws 2012, LB768, § 1; Laws 2014, LB853, § 19; Laws 2016, LB684, § 1.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-108. Personal appearance of parties; exceptions.

The minor child to be adopted, unless such child is over fourteen years of age, and the person or persons desiring to adopt the child must appear in person before the judge at the time of hearing, except that when the petitioners are married and one of them is present in court, the court, in its discretion, may accept the affidavit of an absent spouse who is in the armed forces of the United States and it appears to the court the absent spouse will not be able to be present in court for more than a year because of his or her military assignment, which affidavit sets forth that the absent spouse favors the adoption.

Source:Laws 1943, c. 104, § 6, p. 351; R.S.1943, § 43-108; Laws 1969, c. 340, § 1, p. 1199; Laws 1998, LB 1041, § 11; Laws 2022, LB741, § 24.

43-109. Decree; conditions; content.

(1) If, upon the hearing, the court finds that such adoption is for the best interests of such minor child or such adult child, a decree of adoption shall be entered. No decree of adoption shall be entered unless:

(a) It appears that the child has resided with the person or persons petitioning for such adoption for at least six months next preceding the entering of the decree of adoption, except that such residency requirement shall not apply in an adoption of an adult child;

(b) The medical histories required by subsection (2) of section 43-107 have been made a part of the court record;

(c) The court record includes an affidavit or affidavits signed by the relinquishing biological parent, or parents if both are available, in which it is affirmed that, pursuant to section 43-106.02, prior to the relinquishment of the child for adoption, the relinquishing parent was, or parents if both are available were:

(i) Presented a copy or copies of the nonconsent form provided for in section 43-146.06; and

(ii) Given an explanation of the effects of filing or not filing the nonconsent form; and

(d) If the child to be adopted is committed to the Department of Health and Human Services, the document required by subsection (3) of section 43-107 is a part of the court record.

(2) If the adopted child was born out of wedlock, that fact shall not appear in the decree of adoption.

(3) The court may decree such change of name for the adopted child as the petitioner or petitioners may request.

Source:Laws 1943, c. 104, § 7, p. 351; R.S.1943, § 43-109; Laws 1984, LB 510, § 4; Laws 1985, LB 255, § 22; Laws 1988, LB 372, § 2; Laws 1988, LB 301, § 8; Laws 1989, LB 231, § 2; Laws 1999, LB 594, § 19; Laws 2011, LB94, § 2; Laws 2012, LB768, § 2; Laws 2022, LB741, § 25.

Annotations

In determining whether adoption is in a child's best interests, a court may consider the effect of adoption on preexisting family attachments and weigh the alternative of continuing the status quo of a guardianship. In re Adoption of Faith F., 313 Neb. 491, 984 N.W.2d 640 (2023).

Reducing best interests to whether the first person to the courthouse with an adoption petition is good enough to carry out parental responsibilities for a child is inconsistent with the comprehensive and individualized consideration traditionally expected of trial courts in determining a child's best interests. In re Adoption of Faith F., 313 Neb. 491, 984 N.W.2d 640 (2023).

The best interests of the child who is the subject of an adoption petition must remain a flexible and unique determination based on specific evidence relating to that child. In re Adoption of Faith F., 313 Neb. 491, 984 N.W.2d 640 (2023).

The issue of the children's best interests in the context of adoption is within the dominion of the county court. Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).

A decision as to whether or not to permit adoption is required to be based on the best interests of the child. Nebraska Children's Home Soc. v. Collins, 195 Neb. 531, 239 N.W.2d 258 (1976).

Child must reside with adoptive parents at least six months preceding the rendition of decree. Hiatt v. Menendez, 157 Neb. 914, 62 N.W.2d 123 (1954).

Decree of adoption should be granted only if it will be for best interests of child. Krell v. Jenkins, 157 Neb. 554, 60 N.W.2d 613 (1953).

43-110. Decree; effect as between parties.

After a decree of adoption is entered, the usual relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the person or persons adopting such child and his, her or their kindred.

Source:Laws 1943, c. 104, § 8, p. 351; R.S.1943, § 43-110.

Annotations

No distinction between adult and minor adoptees will be made for the purposes of this section. Satterfield v. Bonyhady, 233 Neb. 513, 446 N.W.2d 214 (1989).

Under the provisions of this section an adopted child, in the absence of specific testamentary directions to the contrary, inherits from the antecedents of an adoptive parent to the same extent as do the adoptive parent's natural children. In re Trust Estate of Darling, 219 Neb. 705, 365 N.W.2d 821 (1985).

Habeas corpus petition of natural parents for children who had been in adoptive home over five years was properly dismissed. Syrovatka ex rel. Syrovatka v. Graham, 190 Neb. 355, 208 N.W.2d 281 (1973).

The next of kin of adoptive parents have the same right to inherit property from an adoptive child as from a natural child of the adoptive parents. Neil v. Masterson, 187 Neb. 364, 191 N.W.2d 448 (1971).

43-111. Decree; effect as to natural parents.

Except as provided in sections 43-101 and 43-106.01 and the Nebraska Indian Child Welfare Act, after a decree of adoption has been entered, the natural parents of the adopted child shall be relieved of all parental duties toward and all responsibilities for such child and have no rights over such adopted child or to his or her property by descent and distribution.

Source:Laws 1943, c. 104, § 9, p. 352; R.S.1943, § 43-111; Laws 1965, c. 234, § 2, p. 679; Laws 1985, LB 255, § 23; Laws 2022, LB741, § 26.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

The parental preference doctrine applies in a habeas proceeding to obtain custody of a child who is the subject of an adoption proceeding if the parent's relinquishment is invalid or void. A court in a habeas proceeding may not deprive a parent of custody of his or her minor child unless a party affirmatively shows that the parent is unfit or has forfeited the right to perform his or her parental duties. The best interests standard is subject to the overriding recognition that the relationship between parent and child is constitutionally protected. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).

Under this section, it is the adoption itself which terminates the parental rights, and until the adoption is granted, the parental rights are not terminated. When a parent's relinquishment of his or her child is invalid or void, this section governs when the parent's rights are terminated. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).

In a private adoption situation, the relinquishing parent's rights are not totally extinguished until the child has been formally adopted. Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991).

In a private placement, where relinquishment was not voluntary and the natural mother attempted to revoke the relinquishment within hours, the adoptive parents have no standing to contest the custody of the child. Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980).

This section does not prohibit an adopted child from inheriting from its natural parents. Wulf v. Ibsen, 184 Neb. 314, 167 N.W.2d 181 (1969).

43-111.01. Denial of petition; court; powers.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, if, upon a hearing, the court shall deny a petition for adoption, the court may take custody of the child involved and determine whether or not it is in the best interests of the child to remain in the custody of the proposed adopting parents. The court may also, on its own motion, appoint a legal guardian over the person and property of such minor and make disposition in the best interests of the child without further notice, relinquishments, or consents as may otherwise be required by sections 43-101.01 to 43-112.

Source:Laws 1965, c. 231, § 1, p. 674; Laws 1971, LB 384, § 1; Laws 1985, LB 255, § 24; Laws 2022, LB741, § 27.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

Where abandonment is found so as to permit substitute consent to be given, the county court may still refuse to allow the adoption, in which case the parental rights remain intact until a decree of adoption is in fact granted. In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982).

43-112. Decree; appeal.

An appeal shall be allowed from any final order, judgment, or decree, rendered under the authority of sections 43-101 to 43-115, from the county court to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals.

An appeal may be taken by any party and may also be taken by any person against whom the final judgment or final order may be made or who may be affected thereby. The judgment of the Court of Appeals shall not vacate the judgment of the county court. The judgment of the Court of Appeals shall be certified without cost to the county court for further proceedings consistent with the determination of the Court of Appeals.

Source:Laws 1943, c. 104, § 10, p. 352; R.S.1943, § 43-112; Laws 1981, LB 42, § 22; Laws 1995, LB 538, § 8; Laws 2022, LB741, § 28.

43-113. Adoption records; access; retention.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, court adoption records may not be inspected by the public and shall be permanently retained as a preservation duplicate in the manner provided in section 84-1208 or in their original form in accordance with the Records Management Act. No person shall have access to such records except that:

(1) Access shall be provided on the order of the judge of the court in which the decree of adoption was entered on good cause shown or as provided in sections 43-138 to 43-140 or 43-146.11 to 43-146.13; or

(2) The clerk of the court shall provide three certified copies of the decree of adoption to the parents who have adopted a child born in a foreign country and not then a citizen of the United States within three days after the decree of adoption is entered. A court order is not necessary to obtain these copies. Certified copies shall only be provided upon payment of applicable fees.

Source:Laws 1943, c. 104, § 11, p. 352; R.S.1943, § 43-113; Laws 1980, LB 992, § 29; Laws 1985, LB 255, § 25; Laws 1988, LB 372, § 4; Laws 1989, LB 229, § 2; Laws 1997, LB 80, § 1; Laws 1998, LB 1041, § 12; Laws 2021, LB355, § 4.

Cross References

Birth certificate, adoptive, see sections 71-626 and 71-627.02.

Nebraska Indian Child Welfare Act, see section 43-1501.

Records Management Act, see section 84-1220.

Report of adoption, court required to file, see section 71-626.

43-114. Repealed. Laws 1949, c. 95, § 2.

43-115. Prior adoptions.

No adoption heretofore lawfully made shall be affected by the enactment of sections 43-101 to 43-115, but such adoptions shall continue in effect and operation according to the terms thereof.

Source:Laws 1943, c. 104, § 13, p. 352; R.S.1943, § 43-115; Laws 2022, LB741, § 29.

43-116. Validity of decrees.

When any court in the State of Nebraska shall (1) have entered of record a decree of adoption prior to August 27, 1949, it shall be conclusively presumed that such adoption and all instruments and proceedings in connection therewith are valid in all respects notwithstanding some defect or defects may appear on the face of the record, or the absence of any record of such court, unless an action shall be brought within two years from August 27, 1949, attacking its validity, or (2) hereafter enter of record such a decree of adoption, it shall in like manner be conclusively presumed that the adoption and all instruments and proceedings in connection therewith are valid in all respects notwithstanding some defect or defects may appear on the face of the record, or the absence of any record of such court, unless an action is brought within two years from the entry of such decree of adoption attacking its validity.

Source:Laws 1949, c. 130, § 1, p. 340; Laws 1998, LB 1041, § 13.

Annotations

Any action to set aside an adoption must be brought under this section. The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed. In re Adoption of Hemmer, 260 Neb. 827, 619 N.W.2d 848 (2000).

All instruments and proceedings connected with adoption are conclusively presumed valid unless decree is attacked within two years. Syrovatka ex rel. Syrovatka v. Graham, 190 Neb. 355, 208 N.W.2d 281 (1973).

After two years from entry of decree of adoption, there is conclusive presumption of validity of decree of adoption. Hiatt v. Menendez, 157 Neb. 914, 62 N.W.2d 123 (1954).

Natural parents are barred from collaterally challenging the adoption of their natural children once the statutory period of two years had passed for a direct appeal of the adoption order. Syrovatka v. Erlich, 608 F.2d 307 (8th Cir. 1979).

43-117. Adoptive parents; assistance; medical assessment of child.

(1) The Department of Health and Human Services may make payments as needed, after the legal completion of an adoption, on behalf of a child who immediately preceding the adoption was (a) a ward of the department with special needs or (b) the subject of a state-subsidized guardianship. Such payments to adoptive parents may include maintenance costs, medical and surgical expenses, and other costs incidental to the care of the child. Payments for maintenance and medical care shall terminate on or before the child's twentieth birthday.

(2) The Department of Health and Human Services shall pay the treatment costs for the care of an adopted minor child which are the result of an illness or condition if within three years after the decree of adoption is entered the child is diagnosed as having a physical or mental illness or condition which predates the adoption and the child was adopted through the department, the department did not inform the adopting parents of such condition prior to the adoption, and the condition is of such nature as to require medical, psychological, or psychiatric treatment and is more extensive than ordinary childhood illness.

(3) The Department of Health and Human Services shall conduct a medical assessment of the mental and physical needs of any child to be adopted through the department.

Source:Laws 1971, LB 425, § 1; Laws 1996, LB 1044, § 114; Laws 1997, LB 788, § 1; Laws 2009, LB91, § 1.

43-117.01. Ward of a child placement agency; adoptive parents; assistance.

The Department of Health and Human Services may make payments as needed on behalf of a ward of a child placement agency with special needs after the legal completion of the child's adoption as authorized by the federal adoption assistance program, 42 U.S.C. 673. Such payments to adoptive parents may include maintenance costs, medical and surgical expenses, and other costs incidental to the care of the child. Payments for maintenance and medical care shall terminate on or before the child's nineteenth birthday.

Source:Laws 1990, LB 1070, § 1; Laws 1996, LB 1044, § 115.

43-117.02. Child with special needs; adoptive parents; reimbursement for adoption expenses.

The Department of Health and Human Services may make a payment of up to two thousand dollars on behalf of a child with special needs after the legal completion of the child's adoption. The payment to the adoptive parents shall be a reimbursement for nonrecurring adoption expenses, including reasonable and necessary adoption fees, court costs, attorney's fees, and other expenses which are directly related to the legal adoption of the child, which are not incurred in violation of law, and which have not been reimbursed from any other source or funds.

Source:Laws 1990, LB 1070, § 2; Laws 1996, LB 1044, § 116.

43-117.03. Adoption assistance payments; cease; when; exceptions.

Payment of adoption assistance provided for by section 43-117 ceases upon the death of the adoptive parent or parents except (1) in cases in which the adoption assistance agreement provides for assignment to a guardian or conservator or (2) for up to six months pending the appointment of a guardian or conservator if the child is placed in the temporary custody of a family member or other individual.

Payment of adoption assistance provided by section 43-117 ceases upon placement of the child with the Department of Health and Human Services or a child placement agency.

Source:Laws 2012, LB1062, § 2.

43-118. Assistance; conditions.

All actions of the Department of Health and Human Services under the programs authorized by sections 43-117 to 43-117.03 and 43-118.02 shall be subject to the following criteria:

(1) The child so adopted shall have been a child for whom adoption would not have been possible without the financial aid provided for by sections 43-117 to 43-117.03 and 43-118.02; and

(2) The department shall adopt and promulgate rules and regulations for the administration of sections 43-117 to 43-118 and 43-118.02.

Source:Laws 1971, LB 425, § 2; Laws 1990, LB 1070, § 3; Laws 1996, LB 1044, § 117; Laws 2007, LB296, § 68; Laws 2012, LB1062, § 3.

43-118.01. Ward of state; adoption assistance payment.

(1) For adoptions decreed on or after January 1, 2000, and on or before October 1, 2002, every individual or couple that adopts a ward of the State of Nebraska shall be entitled to a payment of one thousand dollars for the year of adoption and for up to four succeeding years. Payments shall be made after approval of an application submitted by the adoptive parent or parents to the Department of Health and Human Services. The application shall be on a form prescribed by the department. An application shall be submitted during January of the year following the year for which the payment is sought. An applicant shall be eligible for payment for the year of adoption and for the earliest of four subsequent years or until the adopted child reaches the age of majority, is emancipated, or is no longer living in the home of the adoptive parent or parents. To be eligible for payment in the years subsequent to the adoption, the requirements of this section must be met for the entire year.

(2) The department shall review all applications for eligibility for payment. The department shall approve or deny payment within thirty days after receipt of the application. If approved, the department shall certify the necessary information to the Director of Administrative Services for the issuance of a warrant. Warrants shall be issued within thirty days after certification. Any person aggrieved by a decision of the department may appeal. The appeal shall be in accordance with the Administrative Procedure Act.

(3) The department shall adopt and promulgate rules and regulations to carry out this section.

Source:Laws 2000, LB 482, § 1; Laws 2002, Second Spec. Sess., LB 22, § 1.

Cross References

Administrative Procedure Act, see section 84-920.

43-118.02. Written adoption assistance agreement; required; contents.

Before a final decree of adoption is issued, the Department of Health and Human Services and the adoptive parent or parents shall enter into a written adoption assistance agreement stating the terms of assistance as provided for by sections 43-117 to 43-118 if the child is eligible for such assistance and designating a guardian for the child in case of the death of the adoptive parent or parents.

Source:Laws 2012, LB1062, § 1.

43-119. Definitions, where found.

For purposes of sections 43-119 to 43-146.16, unless the context otherwise requires, the definitions found in sections 43-121 to 43-123.01 shall be used.

Source:Laws 1980, LB 992, § 1; Laws 1988, LB 372, § 5; Laws 1997, LB 307, § 22; Laws 2007, LB296, § 69.

43-120. Repealed. Laws 1997, LB 307, § 236.

43-121. Agency, defined.

Agency shall mean a child placement agency licensed by the Department of Health and Human Services.

Source:Laws 1980, LB 992, § 3; Laws 1997, LB 307, § 23.

43-122. Department, defined.

Department shall mean the Department of Health and Human Services.

Source:Laws 2007, LB296, § 70.

43-123. Relative, defined.

Relative shall mean the biological parents or biological siblings of an adopted person.

Source:Laws 1980, LB 992, § 5.

43-123.01. Medical history, defined.

Medical history shall mean medical history as defined by the department in its rules and regulations and shall include the race, ethnicity, nationality, Indian tribe when applicable and in compliance with the Nebraska Indian Child Welfare Act, or other cultural history of both biological parents, if available.

Source:Laws 1988, LB 372, § 22; Laws 1996, LB 1044, § 120; Laws 2007, LB296, § 71; Laws 2011, LB124, § 2.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-124. Department; provide relative consent form.

The department shall provide a form which may be signed by a relative indicating the fact that such relative consents to his or her name being released to such relative's adopted person as provided by sections 43-113, 43-119 to 43-146.16, 71-626, 71-626.01, and 71-627.02. Such consent shall be effective as of the time of filing the form with the department.

Source:Laws 1980, LB 992, § 6; Laws 1997, LB 307, § 24; Laws 2007, LB296, § 72.

43-125. Relative consent form.

The form provided by section 43-124 shall contain the following information:

(1) The name of the person completing the form and, if different, the name of such person at the time of birth of the adopted person;

(2) The relationship of the person to the adopted person;

(3) The date of birth of the adopted person;

(4) The sex of the adopted person;

(5) The place of birth of the adopted person;

(6) Authorization that the name, last-known address, and last-known telephone number of the relative and the original birth certificate of the adopted person may be released to the adopted person as provided by sections 43-113, 43-119 to 43-146.16, 71-626, 71-626.01, and 71-627.02; and

(7) A notice in the following form:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form allows the Department of Health and Human Services to give your name and other information to the adopted person designated, upon his or her written request after reaching twenty-five years of age. You may file additional copies of this consent if your name or address changes. You may revoke this consent at any time by filing a revocation of consent with the Department of Health and Human Services.

Source:Laws 1980, LB 992, § 7; Laws 1997, LB 307, § 25; Laws 2007, LB296, § 73.

43-126. Relative; revocation of consent; form.

At any time after signing the consent form, a relative may revoke such consent form. A form for revocation of consent shall be provided by the department. The revocation shall be effective as of the time of filing the form with the department. The revocation form shall contain the following notice:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services will not disclose your name or address to any person without a court order. If you sign this form and later decide you do want your name and address given to a relative properly requesting the information, you may file another consent for that purpose.

Source:Laws 1980, LB 992, § 8; Laws 1997, LB 307, § 26; Laws 2007, LB296, § 74.

43-127. Relative; consent and revocation forms; notarized; filing.

The forms provided by sections 43-124 and 43-126 shall be notarized and filed with the department which shall keep such forms with all other records of an individual adopted person.

Source:Laws 1980, LB 992, § 9; Laws 1997, LB 307, § 27; Laws 2007, LB296, § 75.

43-128. Medical history; access; contents.

A child placement agency shall maintain, and shall provide to the adopting parents upon placement of the person with such parents and to the adopted person upon his or her request, the available medical history of the person placed for adoption and of the biological parents. The medical history shall not include the names of the biological parents of the adopted person or the place of birth of the adopted person.

Source:Laws 1980, LB 992, § 10; Laws 1983, LB 146, § 4.

43-129. Original birth certificate; access by medical professionals; when.

If at any time an individual licensed to practice medicine and surgery pursuant to the Medicine and Surgery Practice Act or licensed to engage in the practice of psychology pursuant to the Psychology Practice Act, through his or her professional relationship with an adopted person, determines that information contained on the original birth certificate of the adopted person may be necessary for the treatment of the health of the adopted person, whether physical or mental in nature, he or she may petition a court of competent jurisdiction for the release of the information contained on the original birth certificate, and the court may release the information on good cause shown.

Source:Laws 1980, LB 992, § 11; Laws 1988, LB 372, § 23; Laws 1994, LB 1210, § 6; Laws 1999, LB 366, § 5; Laws 2007, LB463, § 1131.

Cross References

Medicine and Surgery Practice Act, see section 38-2001.

Psychology Practice Act, see section 38-3101.

43-130. Adopted person; request for information; form.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, an adopted person twenty-five years of age or older born in this state who desires access to the names of relatives or access to his or her original certificate of birth shall file a written request for such information with the department. The department shall provide a form for making such a request.

Source:Laws 1980, LB 992, § 12; Laws 1985, LB 255, § 26; Laws 1997, LB 307, § 28; Laws 2007, LB296, § 76.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-131. Release of information; procedure.

(1) Upon receipt of a request for information, the department shall check the records of the adopted person making the request to determine whether the consent form provided by section 43-124 has been signed and filed by any relative of the adopted person and whether an unrevoked nonconsent form is on file from a biological parent or parents pursuant to section 43-132 or from an adoptive parent or parents pursuant to section 43-143.

(2) If the consent form has been signed and filed and has not been revoked and if no nonconsent form has been filed by an adoptive parent or parents pursuant to section 43-143, the department shall release the information on such form to the adopted person.

(3) If no consent forms have been filed, or if the consent form has been revoked, and if no nonconsent form has been filed pursuant to section 43-143, the following information shall be released to the adopted person:

(a) The name and address of the court which issued the adoption decree;

(b) The name and address of the child placement agency, if any, involved in the adoption; and

(c) The fact that an agency may assist the adopted person in searching for relatives as provided in sections 43-132 to 43-141.

(4) The provisions of this section shall not apply to persons subject to the Nebraska Indian Child Welfare Act.

Source:Laws 1980, LB 992, § 13; Laws 1985, LB 255, § 27; Laws 1997, LB 307, § 29; Laws 2007, LB296, § 77.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-132. Biological parent; notice of nonconsent; filing.

A biological parent or parents may at any time, if they desire, file a notice of nonconsent with the department stating that at no time after his or her death and prior to the death of his or her spouse, if such spouse is not a biological parent, may any information on the adopted person's original birth certificate be released to such adopted person. The provisions of this section shall not apply to persons subject to the Nebraska Indian Child Welfare Act.

Source:Laws 1980, LB 992, § 14; Laws 1985, LB 255, § 28; Laws 1997, LB 307, § 30; Laws 2007, LB296, § 78.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-133. Biological parent; nonconsent form.

The nonconsent form provided for in section 43-132 shall contain the following information:

(1) The name of the person completing the form and, if different, the name of such person at the time of birth of the adopted person;

(2) The relationship of the person to the adopted person;

(3) The date of birth of the adopted person;

(4) The sex of the adopted person;

(5) The place of birth of the adopted person;

(6) A statement that no information concerning the information contained in the original birth certificate of the adopted person shall be released following the death of the parent or parents signing the form and such information shall not be released to the adopted person prior to the death of the spouse of such parent or parents, if such spouse is not a biological parent; and

(7) A notice in the following form:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services will not disclose any information contained on the birth certificate of the adopted person to any person following your death and prior to the death of your spouse, if such spouse is not a biological parent, without a court order. If you later decide that you do not object to the release of such information you may file a form stating that purpose.

Source:Laws 1980, LB 992, § 15; Laws 1997, LB 307, § 31; Laws 2007, LB296, § 79.

43-134. Biological parent; revocation of nonconsent; form.

At any time after signing the notice of nonconsent provided for in section 43-132, the parent or parents may revoke such notice. A form of revocation shall be provided by the department and shall take effect at the time of filing of the form with the department. The revocation form shall contain the following notice:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services may disclose any information contained on the birth certificate of the adopted person following your death. If you sign this form and later decide you do not want this information released following your death and prior to the death of your spouse, if such spouse is not a biological parent, you may file another form for that purpose.

Source:Laws 1980, LB 992, § 16; Laws 1997, LB 307, § 32; Laws 2007, LB296, § 80.

43-135. Biological parent; deceased; release of information.

If the department has information indicating that both biological parents of the adopted person are deceased, or if only one biological parent is known and information indicates that such parent is deceased, and no nonconsent form, as provided in section 43-132 or 43-143, has been filed, all information on the adopted person's original birth certificate regarding such deceased parent or parents shall be released to the adopted person notwithstanding the fact that no consent form was signed and filed by such deceased parent or parents prior to death.

Source:Laws 1980, LB 992, § 17; Laws 1997, LB 307, § 33; Laws 2007, LB296, § 81.

43-136. Release of original birth certificate; when.

If a consent form has been signed and filed by both biological parents or by the biological mother of a child born out of wedlock, and no nonconsent form, as provided in section 43-143, has been filed, a copy of the adopted person's original birth certificate shall be provided to the adopted person.

Source:Laws 1980, LB 992, § 18.

43-137. Adopted person; contact child placement agency or department; when.

If an adopted person twenty-five years of age or older, after following the procedures set forth in sections 43-130 and 43-131 is not able to obtain information about such person's relatives, such person may then contact the child placement agency which handled the adoption if the name of the agency has been given to the adopted person by the department. If it is not feasible for the adopted person to contact the agency, such person may contact the department.

Source:Laws 1980, LB 992, § 19; Laws 1997, LB 307, § 34; Laws 2007, LB296, § 82.

43-138. Department or agency; acquire information in court or department records; disclosure requirements.

After being contacted by an adopted person, if no valid nonconsent form, as provided in section 43-132 or 43-143, is on file, the department or agency as the case may be shall apply to the clerk of the court which issued the adoption decree or the department for any information in the records of the court or the department regarding the adopted person or his or her relatives, including names, locations, and any birth, marriage, divorce, or death certificates. Any information which is available shall be given only to the department or agency. The department or agency shall keep such information confidential and shall not disclose it either directly or indirectly to the adopted person. The provisions of this section shall not apply to persons subject to the Nebraska Indian Child Welfare Act.

Source:Laws 1980, LB 992, § 20; Laws 1985, LB 255, § 29; Laws 1993, LB 205, § 1; Laws 1997, LB 307, § 35; Laws 1998, LB 1041, § 14; Laws 2007, LB296, § 83.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-139. Court or department records provided; record required.

When any information is provided to the department or agency pursuant to section 43-138, the person providing the information shall record in the records of the adopted person the nature of the information disclosed, to whom the information was disclosed, and the date of the disclosure.

Source:Laws 1980, LB 992, § 21; Laws 1993, LB 205, § 2; Laws 1997, LB 307, § 36; Laws 2007, LB296, § 84.

43-140. Department or agency; contact relative; limitations; reunion or release of information; when.

(1) Upon determining the identity and location of the relative being sought, the department or agency shall attempt to contact the relative to determine such relative's willingness to be contacted by the adopted person.

(2) In contacting the relative, the department or agency shall not discuss or reveal in any other manner to any person other than that particular relative who is being sought the nature of the contact, the name, nature, or business of the adoption agency, or any other information which might indicate or imply that such relative is the biological parent of an adopted person.

(3) In contacting the relative, the department or agency shall not reveal the identity or any other information about the adopted person.

(4) No reunion of a relative and an adopted person shall be arranged, nor shall any information about the relative be released to the adopted person until such relative has signed the consent form provided by section 43-124 and the form has been filed with the department.

Source:Laws 1980, LB 992, § 22; Laws 1997, LB 307, § 37; Laws 2007, LB296, § 85.

43-141. Department or agency; fees; rules and regulations.

The department or agency may charge a reasonable fee in an amount established by the department or agency in rules and regulations to recover expenses in carrying out sections 43-137 to 43-140. The department or agency shall use the fees to defray costs incurred to carry out such sections. The department or agency may waive the fee if the requesting party shows that the fee would work an undue financial hardship on the party.

The department may adopt and promulgate rules and regulations to carry out such sections.

Source:Laws 1980, LB 992, § 23; Laws 1993, LB 205, § 3; Laws 1997, LB 307, § 38; Laws 2007, LB296, § 86.

43-142. Department or agency; file report with clerk.

The department or an agency which receives information as provided in section 43-138 shall file a written report with the clerk of the court within nine months of receipt of the information. The report shall indicate whether the relative has been located and whether a contact between the relative and the adopted person has been arranged or has occurred. If the relative has not been located, the report shall set forth the efforts made to identify and locate the relative.

Source:Laws 1980, LB 992, § 24; Laws 1997, LB 307, § 39; Laws 2007, LB296, § 87.

43-143. Adoptive parent; notice of nonconsent; filing.

For adoptions in which the relinquishment or consent for adoption was given prior to July 20, 2002: An adoptive parent or parents may at any time, if they desire, file a notice of nonconsent with the department stating that at no time prior to his or her death or the death of both parents if each signed the form may any information on the adopted person's original birth certificate be released to such adopted person. The provisions of this section shall not apply to persons subject to the Nebraska Indian Child Welfare Act.

Source:Laws 1980, LB 992, § 25; Laws 1985, LB 255, § 30; Laws 1997, LB 307, § 40; Laws 2002, LB 952, § 3; Laws 2007, LB296, § 88.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-144. Adoptive parent; nonconsent form.

The nonconsent form provided for in section 43-143 shall contain the following information:

(1) The name of the person completing the form and, if different, the name of such person at the time of birth of the adopted person;

(2) The relationship of the person to the adopted person;

(3) The date of birth of the adopted person;

(4) The sex of the adopted person;

(5) The place of birth of the adopted person;

(6) A statement that no information concerning the information contained in the original birth certificate of the adopted person shall be released prior to the death of the adoptive parent or parents signing the form; and

(7) A notice in the following form:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services will not disclose any information contained on the birth certificate of the adopted person to any person prior to your death and the death of your spouse, if he or she signed the form, without a court order. If you later decide that you do not object to the release of such information you may file a form stating that purpose.

Source:Laws 1980, LB 992, § 26; Laws 1997, LB 307, § 41; Laws 2007, LB296, § 89.

43-145. Adoptive parent; revocation of nonconsent; form.

At any time after signing the notice of nonconsent provided for in section 43-143, the adoptive parent or parents may revoke such notice. A form of revocation shall be provided by the department and shall take effect at the time of filing of the form with the department. The revocation form shall contain the following notice:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services may disclose any information contained on the birth certificate of the adopted person pursuant to sections 43-113, 43-119 to 43-146.16, 71-626, 71-626.01, and 71-627.02. If you sign this form and later decide you do not want this information released prior to your death you may file another form for that purpose.

Source:Laws 1980, LB 992, § 27; Laws 1997, LB 307, § 42; Laws 2007, LB296, § 90.

43-146. Forms; notarized; filing.

The forms provided by sections 43-132, 43-134, 43-143, and 43-145 shall be notarized and filed with the department which shall keep such forms with all other records of an individual adopted person.

Source:Laws 1980, LB 992, § 28; Laws 1997, LB 307, § 43; Laws 2007, LB296, § 91.

43-146.01. Sections; applicability.

(1) Sections 43-106.02, 43-121, 43-123.01, and 43-146.02 to 43-146.16 shall provide the procedures for gaining access to information concerning an adopted person when a relinquishment or consent for an adoption is given on or after September 1, 1988.

(2) Sections 43-119 to 43-142 shall remain in effect for a relinquishment or consent for an adoption which is given prior to September 1, 1988.

(3) Except as otherwise provided in subsection (2) of section 43-107 and subsection (4) of this section: Sections 43-101 to 43-118, 43-143 to 43-146, 43-146.17, 71-626, 71-626.01, and 71-627.02 shall apply to all adoptions.

(4) Sections 43-143 to 43-146 shall not apply to adopted persons for whom a relinquishment or consent for adoption was given on and after July 20, 2002.

Source:Laws 1988, LB 372, § 6; Laws 1988, LB 301, § 9; Laws 2002, LB 952, § 4; Laws 2011, LB94, § 3; Laws 2012, LB768, § 3; Laws 2022, LB741, § 30.

43-146.02. Medical history; requirements.

A child placement agency, the department, or a private agency handling the adoption, as the case may be, shall maintain and shall provide to the adopting parents upon placement of the person with such parents and to the adopted person, upon his or her request, the available medical history of the person placed for adoption and of the biological parents. The medical history shall not include the names of the biological parents of the adopted person or any other identifying information.

Source:Laws 1988, LB 372, § 7; Laws 1997, LB 307, § 44; Laws 2007, LB296, § 92.

43-146.03. Information on original birth certificate; release; when.

Source:Laws 1988, LB 372, § 8; Laws 1994, LB 1210, § 7; Laws 1999, LB 366, § 6; Laws 2007, LB463, § 1132.

Cross References

Medicine and Surgery Practice Act, see section 38-2001.

Psychology Practice Act, see section 38-3101.

43-146.04. Adopted person; request for information; form.

An adopted person twenty-one years of age or older born in this state who desires access to the names of relatives or access to his or her original certificate of birth shall file a written request for such information with the department. The department shall provide a form for making such request.

Source:Laws 1988, LB 372, § 9; Laws 1997, LB 307, § 45; Laws 2007, LB296, § 93.

43-146.05. Release of information; procedure.

(1) Upon receipt of a request for information made under section 43-146.04, the department shall check the records of the adopted person to determine whether an unrevoked nonconsent form is on file from a biological parent pursuant to section 43-146.06.

(2) If no nonconsent form has been filed pursuant to section 43-146.06, the following information shall be released to the adopted person:

(a) The name and address of the court which issued the adoption decree;

(b) The name and address of the child placement agency, if any, involved in the adoption;

(c) The fact that an agency or the department may assist the adopted person in searching for relatives as provided in sections 43-146.10 to 43-146.14;

(d) A copy of the person's original birth certificate; and

(e) A copy of the person's medical history and any medical records on file.

(3) If an unrevoked nonconsent form has been filed pursuant to section 43-146.06, no information may be released to the adopted person except a copy of the person's medical history as provided in section 43-107 if requested. The medical history shall not include the names of the biological parents or relatives of the adopted person or any other identifying information.

Source:Laws 1988, LB 372, § 10; Laws 1997, LB 307, § 46; Laws 2007, LB296, § 94.

43-146.06. Biological parent; notice of nonconsent; filing; failure to sign; effect.

A biological parent may at any time file a notice of nonconsent with the department stating that at no time prior to his or her death may any information on the adopted person's original birth certificate or any other identifying information, except medical histories as provided in section 43-107, be released to such adopted person. Failure by a biological parent to sign the notice of nonconsent shall be deemed a notice of consent by such parent to release the adopted person's original birth certificate to such adopted person.

Source:Laws 1988, LB 372, § 11; Laws 1997, LB 307, § 47; Laws 2007, LB296, § 95.

43-146.07. Biological parent; nonconsent form.

The nonconsent form provided for in section 43-146.06 shall be designed by the department and shall contain the following information:

(1) The name of the person completing the form and, if different, the name of such person at the time of birth of the adopted person;

(2) The relationship of the person to the adopted person;

(3) The date of birth of the adopted person;

(4) The sex of the adopted person;

(5) The place of birth of the adopted person;

(6) A statement that no information contained in the original birth certificate or any other identifying information, except medical histories as provided in section 43-107, shall be released prior to the death of the parent signing the form;

(7) A statement that the person signing understands the effect and consequences of filing or not filing a nonconsent form; and

(8) A notice in the following form:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services will not disclose any information contained in the original birth certificate of the adopted person or any other identifying information to any person prior to your death without a court order. If you later decide that you do not object to the release of such information, you may file a form stating that purpose.

Source:Laws 1988, LB 372, § 12; Laws 1997, LB 307, § 48; Laws 2007, LB296, § 96.

43-146.08. Biological parent; revocation of nonconsent; form.

At any time after signing the notice of nonconsent provided for in section 43-146.06, the biological parent may revoke such notice. A form of revocation shall be provided by the department and shall take effect at the time of filing of the form with the department. The revocation form shall contain the following notice:

IMPORTANT NOTICE

You do not have to sign this form. If you do sign it, you are entitled to a copy of it. Your signature on this form means that the Department of Health and Human Services may at any time disclose to the adopted person any information contained on the original birth certificate of the adopted person.

Source:Laws 1988, LB 372, § 13; Laws 1997, LB 307, § 49; Laws 2007, LB296, § 97.

43-146.09. Biological parent; deceased; release of information.

If the department has verified information indicating that both biological parents of the adopted person are deceased or if only one biological parent is known and verified information indicates that such parent is deceased, all information on the adopted person's original birth certificate regarding such deceased parent or parents shall be released to the adopted person upon request. The department shall establish a policy for verifying information about the death of the biological parent or parents.

Source:Laws 1988, LB 372, § 14; Laws 1997, LB 307, § 50; Laws 2007, LB296, § 98.

43-146.10. Adopted person; contact child placement agency or department; when.

If an adopted person twenty-one years of age or older, after following the procedures set forth in sections 43-146.04 and 43-146.05, is unable to obtain information about the adopted person's relatives and there is no unrevoked nonconsent form as provided in section 43-146.06 on file with the department, such person may then contact the child placement agency which handled the adoption or the department.

Source:Laws 1988, LB 372, § 15; Laws 1997, LB 307, § 51; Laws 2007, LB296, § 99.

43-146.11. Department or agency; acquire information in court or department records; disclosure requirements.

After being contacted by an adopted person as provided in section 43-146.10, the department or agency, as the case may be, shall verify that no unrevoked nonconsent form is on file with the department. If an unrevoked nonconsent form is not on file, the department or agency, as the case may be, shall apply to the clerk of the court which issued the adoption decree or the department for any information in the court or department records regarding the adopted person or his or her relatives, including names, locations, and any birth, marriage, divorce, or death certificates. Any information which is available shall be given by the court or department only to the department or agency. The department or agency shall keep such information confidential.

Source:Laws 1988, LB 372, § 16; Laws 1993, LB 205, § 4; Laws 1997, LB 307, § 52; Laws 1998, LB 1041, § 15; Laws 2007, LB296, § 100.

43-146.12. Court or department records provided; record required.

When any information is provided to the department or agency pursuant to section 43-146.11, the person providing the information shall record in the records of the adopted person the nature of the information disclosed, to whom the information was disclosed, and the date of the disclosure.

Source:Laws 1988, LB 372, § 17; Laws 1993, LB 205, § 5; Laws 1997, LB 307, § 53; Laws 2007, LB296, § 101.

43-146.13. Department or agency; contact relative; release of information; condition.

(2) Information about the relative shall not be released to the adopted person by the department or agency unless such relative agrees to be contacted by the adopted person.

Source:Laws 1988, LB 372, § 18; Laws 1997, LB 307, § 54; Laws 2007, LB296, § 102.

43-146.14. Department or agency; fees; department; rules and regulations.

The department or agency may charge a reasonable fee in an amount established by the department or agency in rules and regulations to recover expenses in carrying out sections 43-146.10 to 43-146.13. The department or agency shall use the fees to defray costs incurred to carry out such sections. The department or agency may waive the fee if the requesting party shows that the fee would work an undue financial hardship on the party.

The department may adopt and promulgate rules and regulations to carry out sections 43-123.01 and 43-146.01 to 43-146.16.

Source:Laws 1988, LB 372, § 19; Laws 1993, LB 205, § 6; Laws 1997, LB 307, § 55; Laws 2007, LB296, § 103.

43-146.15. Department or agency; written report; contents.

The department or an agency which receives information as provided in section 43-146.11 shall file a written report with the clerk of the court or department within nine months of receipt of the information. The report shall indicate whether the relative has been located and whether a contact between the relative and the adopted person has been arranged or has occurred. If the relative has not been located, the report shall set forth the efforts made to identify and locate the relative.

Source:Laws 1988, LB 372, § 20; Laws 1997, LB 307, § 56; Laws 2007, LB296, § 104.

43-146.16. Forms; notarized; filing.

The forms provided by sections 43-146.06 and 43-146.08 shall be notarized and filed with the department which shall keep such forms with all other records of the adopted person.

Source:Laws 1988, LB 372, § 21; Laws 1997, LB 307, § 57; Laws 2007, LB296, § 105.

43-146.17. Heir of adopted person; access to information; when; fee.

(1) Notwithstanding sections 43-119 to 43-146.16 and except as otherwise provided in this section, an heir twenty-one years of age or older of an adopted person shall have access to all information on file at the Department of Health and Human Services related to such adopted person, including information contained in the original birth certificate of the adopted person, if: (a)(i) The adopted person is deceased, (ii) both biological parents of the adopted person are deceased or, if only one biological parent is known, such parent is deceased, and (iii) each spouse of the biological parent or parents of the adopted person, if any, is deceased, if such spouse is not a biological parent; or (b) at least one hundred years has passed since the birth of the adopted person.

(2) The following information relating to an adopted person shall not be released to the heir of such person under this section: (a) Tests conducted for the human immunodeficiency virus or acquired immunodeficiency syndrome; (b) the revocation of a license to practice medicine in the State of Nebraska; (c) child protective services reports or records; (d) adult protective services reports or records; (e) information from the central registry of child protection cases and the Adult Protective Services Central Registry; or (f) law enforcement investigative reports.

(3) The department shall provide a form that an heir of an adopted person may use to request information under this section. The department may charge a reasonable fee in an amount established by rules and regulations of the department to recover expenses incurred by the department in carrying out this section. Such fee may be waived if the requesting party shows that the fee would work an undue financial hardship on the party. When any information is provided to an heir of an adopted person under this section, the disclosure of such information shall be recorded in the records of the adopted person, including the nature of the information disclosed, to whom the information was disclosed, and the date of the disclosure.

(4) For purposes of this section, an heir of an adopted person means a direct biological descendent of such adopted person.

(5) The department may adopt and promulgate rules and regulations to carry out this section.

Source:Laws 2002, LB 952, § 1; Laws 2005, LB 61, § 1; Laws 2007, LB296, § 106; Laws 2014, LB853, § 20.

43-147. Legislative findings.

The Legislature finds that:

(1) Finding adoptive families for children for whom state assistance is provided pursuant to sections 43-117 to 43-118 and 43-118.02 and assuring the protection of the interests of the children affected during the entire assistance period require special measures when the adoptive parents move to other states or are residents of another state; and

(2) Providing medical and other necessary services for children, with state assistance, is more difficult when the services are provided in other states.

Source:Laws 1985, LB 447, § 1; Laws 2012, LB1062, § 4.

43-148. Purposes of sections.

The purposes of sections 43-147 to 43-154 are to:

(1) Authorize the department to enter into interstate agreements with agencies of other states for the protection of children on whose behalf adoption assistance is being provided by the department; and

(2) Provide procedures for interstate children's adoption assistance payments, including medical payments.

Source:Laws 1985, LB 447, § 2.

43-149. Terms, defined.

As used in sections 43-147 to 43-154, unless the context otherwise requires:

(1) Adoption assistance state shall mean the state that is signatory to an adoption assistance agreement in a particular case;

(2) Department shall mean the Department of Health and Human Services; and

(3) State shall mean a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, or a territory or possession of or administered by the United States.

Source:Laws 1985, LB 447, § 3; Laws 1996, LB 1044, § 121.

43-150. Interstate compact; department; powers; effect.

The department may develop, participate in the development of, negotiate, and enter into one or more interstate compacts on behalf of this state with other states to implement one or more of the purposes set forth in sections 43-147 to 43-154. When entered into and for so long as it shall remain in force, such a compact shall have the force and effect of law.

Source:Laws 1985, LB 447, § 4.

43-151. Interstate compact; requirements.

A compact entered into pursuant to sections 43-147 to 43-154 shall include:

(1) A provision making it available for joinder by all states;

(2) A provision for withdrawal from the compact upon written notice to the parties, but with a period of one year between the date of the notice and the effective date of the withdrawal;

(3) A requirement that the protection afforded by or pursuant to the compact continue in force for the duration of the adoption assistance and be applicable to all children and their adoptive parents who on the effective date of the withdrawal are receiving adoption assistance from a party state other than the one in which they are residents and have their principal place of abode;

(4) A requirement that each instance of adoption assistance to which the compact applies be covered by an adoption assistance agreement in writing between the adoptive parents and the state child welfare agency of the state which undertakes to provide the adoption assistance and that any such agreement be expressly for the benefit of the adopted child and enforceable by the adoptive parents and the state agency providing the adoption assistance; and

(5) Such other provisions as may be appropriate to implement the proper administration of the compact.

Source:Laws 1985, LB 447, § 5.

43-152. Interstate compact; discretionary provisions.

A compact entered into pursuant to sections 43-147 to 43-154 may contain provisions in addition to those required pursuant to section 43-151, including:

(1) Provisions establishing procedures and entitlements to medical, developmental, child care, or other social services for the child in accordance with applicable laws even though the child and the adoptive parents are in a state other than the one responsible for or providing the services or the funds to defray part or all of the costs thereof; and

(2) Such other provisions as may be appropriate or incidental to the proper administration of the compact.

Source:Laws 1985, LB 447, § 6.

43-153. Child with special needs; medical assistance identification; how obtained; payment; violations; penalty.

(1) A child with special needs residing in this state who is the subject of an adoption assistance agreement with another state shall be entitled to receive a medical assistance identification from this state upon the filing with the department of a certified copy of the adoption assistance agreement obtained from the adoption assistance state. In accordance with rules and regulations of the department, the adoptive parents shall be required at least annually to show that the agreement is still in force or has been renewed.

(2) The department shall consider the holder of a medical assistance identification pursuant to this section the same as any other holder of a medical assistance identification under the laws of this state and shall process and make payment on claims on account of such holder in the same manner and pursuant to the same conditions and procedures as for other recipients of medical assistance.

(3) Any person who by means of a willfully false statement or representation or by impersonation or other device obtains or attempts to obtain or who aids or abets any other person in obtaining assistance under sections 43-147 to 43-154 shall, upon conviction thereof, be punished pursuant to section 68-1017.

(4) This section shall apply only to medical assistance for children under adoption assistance agreements from states that have entered into a compact with this state under which the other state provides medical assistance to children with special needs under adoption assistance agreements made by this state. All other children entitled to medical assistance pursuant to adoption assistance agreements entered into by this state shall be eligible to receive it in accordance with the laws and procedures applicable thereto.

Source:Laws 1985, LB 447, § 7.

43-154. State plan; administer federal aid.

Consistent with federal law, the department, in connection with the administration of sections 43-147 to 43-154 and any compact entered into pursuant to such sections, shall include in any state plan made pursuant to the Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, Titles IV(e) and XIX of the Social Security Act, and any other applicable federal laws, the provision of adoption assistance and medical assistance for which the federal government pays some or all of the cost. The department shall apply for and administer all relevant federal aid in accordance with law.

Source:Laws 1985, LB 447, § 8.

43-155. Legislative intent.

The Legislature finds that there are children in temporary foster care situations who would benefit from the stability of adoption. It is the intent of the Legislature that such situations be accommodated through the use of adoptions involving exchange-of-information contracts between the department and the adoptive or biological parent or parents.

Source:Laws 1988, LB 301, § 1.

43-156. Terms, defined.

For purposes of sections 43-155 to 43-160, unless the context otherwise requires:

(1) Adoption involving exchange of information shall mean an adoption of a child in which one or both of the child's biological parents contract with the department for information about the child obtained through his or her adoptive family;

(2) Exchange-of-information contract shall mean a two-year, renewable obligation, voluntarily agreed to and signed by both the adoptive and biological parent or parents as well as the department; and

(3) Department shall mean the Department of Health and Human Services.

Source:Laws 1988, LB 301, § 2; Laws 1996, LB 1044, § 122.

43-157. Determination by department.

The department may, when planning the placement of a child for adoption, determine whether the best interests of such child might be served by placing the child in an adoption involving exchange of information.

Source:Laws 1988, LB 301, § 3.

43-158. Information included; effect on visitation.

When the department determines that an adoption involving exchange of information would serve a child's best interests, it may enter into agreements with the child's proposed adoptive parent or parents for the exchange of information. The nature of the information promised to be provided shall be specified in an exchange-of-information contract and may include, but shall not be limited to, letters by the adoptive parent or parents at specified intervals providing information regarding the child's development or photographs of the child at specified intervals. Any agreement shall provide that the biological parent or parents keep the department informed of any change in address or telephone number and may include provision for communication by the biological parent or parents indirectly through the department or directly to the adoptive parent or parents. Nothing in sections 43-155 to 43-160 shall be interpreted to preclude or allow court-ordered parenting time, visitation, or other access with the child and the biological parent or parents.

Source:Laws 1988, LB 301, § 4; Laws 2002, LB 1105, § 437; Laws 2007, LB554, § 39.

43-159. Alteration.

When, after placement of a child for adoption, it is determined by the department, in consultation with the adoptive parent or parents, that certain or all exchanges of information are no longer in the best interests of the child, the department may enter into an agreement with the biological parent or parents to alter the original contract made between the department and the biological parent or parents.

Source:Laws 1988, LB 301, § 5.

43-160. Effect; enforcement.

The existence of any agreement or agreements of the kind specified in section 43-158 shall not operate to impair the validity of any relinquishment or any decree of adoption entered by a court of the State of Nebraska. The violation of the terms of any agreement or agreements of the kind specified in section 43-158 shall not operate to impair the validity of any relinquishment or any decree of adoption entered by a court of competent jurisdiction. The parties to an exchange-of-information contract shall have the authority to bring suit in a court of competent jurisdiction for the enforcement of any agreement entered into pursuant to section 43-158.

Source:Laws 1988, LB 301, § 6; Laws 1998, LB 1041, § 16.

43-161. Client records; maintained by Department of Health and Human Services; access.

All client records from the Nebraska Industrial Home at Milford shall be maintained by the Department of Health and Human Services as confidential records but shall be accessible as provided by statute or by the rules and regulations of the department.

Source:Laws 1993, LB 205, § 7; Laws 1996, LB 1044, § 123; Laws 2007, LB296, § 107.

43-162. Communication or contact agreement; authorized; approval.

The prospective adoptive parent or parents and the birth parent or parents of a prospective adoptee may enter into an agreement regarding communication or contact after the adoption between or among the prospective adoptee and his or her birth parent or parents if the prospective adoptee is in the custody of the Department of Health and Human Services. Any such agreement shall not be enforceable unless approved by the court pursuant to section 43-163.

Source:Laws 1993, LB 205, § 8; Laws 1996, LB 1044, § 124; Laws 1998, LB 1041, § 17.

43-163. Guardian ad litem; appointment; order approving agreement; considerations.

(1) Before approving an agreement under section 43-162, the court shall appoint a guardian ad litem if the prospective adoptee is not already represented by a guardian ad litem, and the guardian ad litem of the prospective adoptee shall represent the best interests of the child concerning such agreement. The court may enter an order approving the agreement upon motion of one of the prospective adoptee's birth parents or one of the prospective adoptive parents if the terms of the agreement are approved in writing by the prospective adoptive parent or parents and the birth parent or parents and if the court finds, after consideration of the recommendations of the guardian ad litem and the Department of Health and Human Services and other factors, that such communication with the birth parent or parents and the maintenance of birth family history would be in the best interests of the prospective adoptee.

(2) In determining if the agreement is in the best interests of the prospective adoptee, the court shall consider the following factors as favoring communication with the birth parent or parents: Whether the prospective adoptee and birth parent or parents lived together for a substantial period of time; the prospective adoptee exhibits attachment or bonding to such birth parent or parents; and the adoption is a foster-parent adoption with the birth parent or parents having relinquished the prospective adoptee due to an inability to provide him or her with adequate parenting.

Source:Laws 1993, LB 205, § 9; Laws 1996, LB 1044, § 125; Laws 1998, LB 1041, § 18.

43-164. Failure to comply with court order; effect.

Failure to comply with the terms of an order entered pursuant to section 43-163 shall not be grounds for setting aside an adoption decree, for revocation of a written consent to adoption after the consent has been approved by the court, or for revocation of a relinquishment of parental rights after the relinquishment has been accepted in writing by the Department of Health and Human Services as provided in section 43-106.01.

Source:Laws 1993, LB 205, § 10; Laws 1996, LB 1044, § 126; Laws 1998, LB 1041, § 19.

43-165. Enforcement of order; modification; when.

An order entered pursuant to section 43-163 may be enforced by a civil action, and the prevailing party may be awarded, as part of the costs of the action, reasonable attorney's fees. The court shall not modify an order issued under such section unless it finds that the modification is necessary to serve the best interests of the adoptee and (1) that the modification is agreed to by the adoptive parent or parents and the birth parent or parents or (2) exceptional circumstances have arisen since the order was entered that justify modification of the order.

Source:Laws 1993, LB 205, § 11.

43-166. Communication and contact agreement; authorized; adoptee consent, when required; court approval; enforcement; civil action authorized; monetary award not allowed.

(1) The adoptive parent or parents and the parent or parents relinquishing a child for adoption may enter into a written agreement to permit continuing communication and contact after the placement of an adoptee between the adoptive parent or parents and the relinquishing parent or parents in private or agency adoptions for adoptees not in the custody of the Department of Health and Human Services as provided under this section.

(2) The terms of a communication and contact agreement entered into under this section may include provisions for (a) future contact or communication between the relinquishing parent or parents and the adoptee or the adoptive parent or parents, or both, (b) sharing information about the adoptee, or (c) other matters related to communication or contact agreed to by the parties.

(3) If the adoptee is fourteen years of age or older at the time of placement, a communication and contact agreement under this section shall not be valid unless consented to in writing by the adoptee.

(4) A court may approve a communication and contact agreement entered into under this section by incorporating such agreement by reference and indicating the court's approval of such agreement in the decree of adoption. Enforceability of a communication and contact agreement is not contingent on court approval or its incorporation into the decree of adoption.

(5) Neither the existence of, nor the failure of any party to comply with the terms of, a communication and contact agreement entered into under this section shall be grounds for (a) setting aside an adoption decree, (b) revoking a written relinquishment of parental rights or written consent to adoption, (c) challenging the adoption on the basis of duress or coercion, or (d) challenging the adoption on the basis that the agreement retains some aspect of parental rights by the relinquishing parent or parents.

(6) A communication and contact agreement entered into under this section may be enforced by a civil action. A court in which such civil action is filed may enforce, modify, or terminate a communication and contact agreement entered into under this section if the court finds that (a) enforcing, modifying, or terminating the communication and contact agreement is necessary to serve the best interests of the adoptee, (b) the party seeking to enforce, modify, or terminate the communication and contact agreement participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition, and (c) when seeking to modify or terminate the agreement, a material change in circumstances has arisen since the parties entered into the communication and contact agreement that justifies modifying or terminating the agreement.

(7) If the adoption was through an agency, the agency which accepted the relinquishment from the relinquishing parent or parents shall be invited to participate in any mediation or other appropriate dispute resolution proceedings as provided in subsection (6) of this section.

(8) With any communication and contact agreement entered into under this section, the following shall appear on the communication and contact agreement: No adoption shall be set aside due to the failure of the adoptive parent or parents or the relinquishing parent or parents to follow the terms of this agreement or a later order modifying or terminating this agreement. Disagreement between the parties or a subsequent civil action brought to enforce, modify, or terminate this agreement shall not affect the validity of the adoption and shall not serve as a basis for orders affecting the custody of the child. The court shall not act on a petition to enforce, modify, or terminate this agreement unless the petitioner has participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition.

(9) The court shall not award monetary damages as a result of the filing of a civil action pursuant to subsection (6) of this section.

Source:Laws 2016, LB744, § 1; Laws 2022, LB741, § 31.

43-201. Repealed. Laws 1981, LB 346, § 88.

43-201.01. Repealed. Laws 1981, LB 346, § 88.

43-202. Repealed. Laws 1981, LB 346, § 88.

43-202.01. Repealed. Laws 1981, LB 346, § 88.

43-202.02. Repealed. Laws 1981, LB 346, § 88.

43-202.03. Repealed. Laws 1981, LB 346, § 88.

43-202.04. Repealed. Laws 1981, LB 346, § 88.

43-203. Repealed. Laws 1957, c. 174, § 1.

43-204. Repealed. Laws 1978, LB 169, § 3.

43-205. Repealed. Laws 1981, LB 346, § 88.

43-205.01. Repealed. Laws 1981, LB 346, § 88.

43-205.02. Repealed. Laws 1981, LB 346, § 88.

43-205.03. Repealed. Laws 1981, LB 346, § 88.

43-205.04. Repealed. Laws 1981, LB 346, § 88.

43-205.05. Repealed. Laws 1981, LB 346, § 88.

43-205.06. Repealed. Laws 1981, LB 346, § 88.

43-205.07. Repealed. Laws 1981, LB 346, § 88.

43-206. Repealed. Laws 1981, LB 346, § 88.

43-206.01. Repealed. Laws 1981, LB 346, § 88.

43-206.02. Repealed. Laws 1981, LB 346, § 88.

43-206.03. Repealed. Laws 1981, LB 346, § 88.

43-206.04. Repealed. Laws 1981, LB 346, § 88.

43-207. Repealed. Laws 1978, LB 624, § 5.

43-208. Repealed. Laws 1981, LB 346, § 88.

43-209. Repealed. Laws 1981, LB 346, § 88.

43-210. Repealed. Laws 1981, LB 346, § 88.

43-210.01. Repealed. Laws 1981, LB 346, § 88.

43-210.02. Repealed. Laws 1981, LB 346, § 88.

43-210.03. Repealed. Laws 1981, LB 346, § 88.

43-210.04. Repealed. Laws 1981, LB 346, § 88.

43-211. Repealed. Laws 1972, LB 1032, § 287.

43-212. Repealed. Laws 1981, LB 346, § 88.

43-212.01. Repealed. Laws 1981, LB 346, § 88.

43-212.02. Repealed. Laws 1981, LB 346, § 88.

43-212.03. Repealed. Laws 1981, LB 346, § 88.

43-213. Repealed. Laws 1969, c. 817, § 87.

43-214. Repealed. Laws 1981, LB 346, § 88.

43-215. Repealed. Laws 1981, LB 346, § 88.

43-216. Repealed. Laws 1981, LB 346, § 88.

43-217. Repealed. Laws 1981, LB 346, § 88.

43-218. Repealed. Laws 1981, LB 346, § 88.

43-219. Repealed. Laws 1981, LB 346, § 88.

43-220. Repealed. Laws 1981, LB 346, § 88.

43-221. Repealed. Laws 1961, c. 118, § 2.

43-222. Repealed. Laws 1963, c. 251, § 8.

43-223. Repealed. Laws 1963, c. 251, § 8.

43-224. Repealed. Laws 1963, c. 251, § 8.

43-225. Repealed. Laws 1963, c. 251, § 8.

43-226. Repealed. Laws 1981, LB 346, § 88.

43-227. Repealed. Laws 1981, LB 346, § 88.

43-228. Transferred to section 43-2,111.

43-229. Transferred to section 43-2,112.

43-230. Transferred to section 43-2,113.

43-230.01. Transferred to section 43-2,114.

43-230.02. Repealed. Laws 1981, LB 346, § 88.

43-230.03. Transferred to section 43-2,115.

43-230.04. Transferred to section 43-2,116.

43-230.05. Transferred to section 43-2,117.

43-231. Repealed. Laws 1963, c. 244, § 7.

43-232. Repealed. Laws 1963, c. 244, § 7.

43-233. Transferred to section 43-2,118.

43-233.01. Transferred to section 43-2,119.

43-233.02. Repealed. Laws 1979, LB 373, § 5.

43-234. Transferred to section 43-2,120.

43-234.01. Transferred to section 43-2,121.

43-235. Transferred to section 43-2,122.

43-236. Transferred to section 43-2,123.

43-236.01. Transferred to section 43-2,124.

43-237. Transferred to section 43-2,125.

43-238. Transferred to section 43-2,126.

43-239. Transferred to section 43-2,127.

43-240. Repealed. Laws 1981, LB 346, § 88.

43-241. Repealed. Laws 1981, LB 346, § 88.

43-242. Repealed. Laws 1981, LB 346, § 88.

43-243. Repealed. Laws 1981, LB 346, § 88.

43-243.01. Repealed. Laws 1981, LB 346, § 88.

43-244. Repealed. Laws 1981, LB 346, § 88.

43-245. Terms, defined.

For purposes of the Nebraska Juvenile Code, unless the context otherwise requires:

(1) Abandonment means a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, and maintenance and the opportunity for the display of parental affection for the child;

(2) Age of majority means nineteen years of age;

(3) Alternative to detention means a program or directive that increases supervision of a youth in the community in an effort to ensure the youth attends court and refrains from committing a new law violation. Alternative to detention includes, but is not limited to, electronic monitoring, day and evening reporting centers, house arrest, tracking, family crisis response, and temporary shelter placement. Except for the use of manually controlled delayed egress of not more than thirty seconds, placements that utilize physical construction or hardware to restrain a youth's freedom of movement and ingress and egress from placement are not considered alternatives to detention;

(4) Approved center means a center that has applied for and received approval from the Director of the Office of Dispute Resolution under section 25-2909;

(5) Civil citation means a noncriminal notice which cannot result in a criminal record and is described in section 43-248.02;

(6) Cost or costs means (a) the sum or equivalent expended, paid, or charged for goods or services, or expenses incurred, or (b) the contracted or negotiated price;

(7) Criminal street gang means a group of three or more people with a common identifying name, sign, or symbol whose group identity or purposes include engaging in illegal activities;

(8) Criminal street gang member means a person who willingly or voluntarily becomes and remains a member of a criminal street gang;

(9) Custodian means a nonparental caretaker having physical custody of the juvenile and includes an appointee described in section 43-294;

(10) Guardian means a person, other than a parent, who has qualified by law as the guardian of a juvenile pursuant to testamentary or court appointment, but excludes a person who is merely a guardian ad litem;

(11) Juvenile means any person under the age of eighteen;

(12) Juvenile court means the separate juvenile court where it has been established pursuant to sections 43-2,111 to 43-2,127 and the county court sitting as a juvenile court in all other counties. Nothing in the Nebraska Juvenile Code shall be construed to deprive the district courts of their habeas corpus, common-law, or chancery jurisdiction or the county courts and district courts of jurisdiction of domestic relations matters as defined in section 25-2740;

(13) Juvenile detention facility has the same meaning as in section 83-4,125;

(14) Legal custody has the same meaning as in section 43-2922;

(15) Mental health facility means a treatment facility as defined in section 71-914 or a government, private, or state hospital which treats mental illness;

(16) Nonoffender means a juvenile who is subject to the jurisdiction of the juvenile court for reasons other than legally prohibited conduct, including, but not limited to, juveniles described in subdivision (3)(a) of section 43-247;

(17) Parent means one or both parents or stepparents when the stepparent is married to a parent who has physical custody of the juvenile as of the filing of the petition;

(18) Parties means the juvenile as described in section 43-247 and his or her parent, guardian, or custodian;

(19) Physical custody has the same meaning as in section 43-2922;

(20) Except in proceedings under the Nebraska Indian Child Welfare Act, relative means father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece;

(21) Restorative justice means practices, programs, or services that emphasize repairing the harm caused to victims and the community by persons who have caused the harm or committed an offense. Restorative justice practices may include, but are not limited to, victim youth conferencing, victim-offender mediation, youth or community dialogue, panels, circles, and truancy mediation;

(22) Restorative justice facilitator means a qualified individual who has been trained to facilitate restorative justice practices. A qualified individual shall be approved by the referring county attorney, city attorney, or juvenile or county court judge. Factors for approval may include, but are not limited to, an individual's education and training in restorative justice principles and practices; experience in facilitating restorative justice sessions; understanding of the necessity to do no harm to either the victim or the person who harmed the victim; and proven commitment to ethical practices;

(23) Seal a record means that a record shall not be available to the public except upon the order of a court upon good cause shown;

(24) Secure detention means detention in a highly structured, residential, hardware-secured facility designed to restrict a juvenile's movement;

(25) Staff secure juvenile facility means a juvenile residential facility operated by a political subdivision (a) which does not include construction designed to physically restrict the movements and activities of juveniles who are in custody in the facility, (b) in which physical restriction of movement or activity of juveniles is provided solely through staff, (c) which may establish reasonable rules restricting ingress to and egress from the facility, and (d) in which the movements and activities of individual juvenile residents may, for treatment purposes, be restricted or subject to control through the use of intensive staff supervision. Staff secure juvenile facility does not include any institution operated by the Department of Correctional Services;

(26) Status offender means a juvenile who has been charged with or adjudicated for conduct which would not be a crime if committed by an adult, including, but not limited to, juveniles charged under subdivision (3)(b) of section 43-247 and sections 53-180.01 and 53-180.02;

(27) Traffic offense means any nonfelonious act in violation of a law or ordinance regulating vehicular or pedestrian travel, whether designated a misdemeanor or a traffic infraction; and

(28) Young adult means an individual older than eighteen years of age but under twenty-one years of age.

Source:Laws 1981, LB 346, § 1; Laws 1985, LB 447, § 11; Laws 1987, LB 638, § 1; Laws 1989, LB 182, § 9; Laws 1996, LB 1296, § 20; Laws 1997, LB 622, § 62; Laws 1998, LB 1041, § 20; Laws 1998, LB 1073, § 11; Laws 2000, LB 1167, § 11; Laws 2004, LB 1083, § 91; Laws 2009, LB63, § 28; Laws 2010, LB800, § 12; Laws 2013, LB561, § 6; Laws 2014, LB464, § 7; Laws 2014, LB908, § 3; Laws 2015, LB265, § 2; Laws 2016, LB894, § 1; Laws 2019, LB595, § 23.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

The language of subsection (2) (now subsection (11)) of this section is not exclusive; it merely identifies the necessary parties to a juvenile proceeding. The grandparents of a child subject to dependency proceedings under section 43-247 are entitled to intervene as a matter of right in the proceedings. In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473 (1998).

A custodial parent's live-in boyfriend or girlfriend is not a "parent." In re Interest of Ethan M., 15 Neb. App. 148, 723 N.W.2d 363 (2006).

43-246. Code, how construed.

Acknowledging the responsibility of the juvenile court to act to preserve the public peace and security, the Nebraska Juvenile Code shall be construed to effectuate the following:

(1) To assure the rights of all juveniles to care and protection and a safe and stable living environment and to development of their capacities for a healthy personality, physical well-being, and useful citizenship and to protect the public interest;

(2) To provide for the intervention of the juvenile court in the interest of any juvenile who is within the provisions of the Nebraska Juvenile Code, with due regard to parental rights and capacities and the availability of nonjudicial resources;

(3) To remove juveniles who are within the Nebraska Juvenile Code from the criminal justice system whenever possible and to reduce the possibility of their committing future law violations through the provision of social and rehabilitative services to such juveniles and their families;

(4) To offer selected juveniles the opportunity to take direct personal responsibility for their individual actions by reconciling with the victims, or victim surrogates when appropriate, through restorative justice practices and fulfilling the terms of the resulting reparation plan which may require apologies, restitution, community service, or other agreed-upon means of making amends;

(5) To achieve the purposes of subdivisions (1) through (3) of this section in the juvenile's own home whenever possible, separating the juvenile from his or her parent when necessary for his or her welfare, the juvenile's health and safety being of paramount concern, or in the interest of public safety and, when temporary separation is necessary, to consider the developmental needs of the individual juvenile in all placements, to consider relatives as a preferred potential placement resource, and to make reasonable efforts to preserve and reunify the family if required under section 43-283.01;

(6) To promote adoption, guardianship, or other permanent arrangements for children in the custody of the Department of Health and Human Services who are unable to return home;

(7) To provide a judicial procedure through which these purposes and goals are accomplished and enforced in which the parties are assured a fair hearing and their constitutional and other legal rights are recognized and enforced;

(8) To assure compliance, in cases involving Indian children, with the Nebraska Indian Child Welfare Act; and

(9) To make any temporary placement of a juvenile in the least restrictive environment consistent with the best interests of the juvenile and the safety of the community.

Source:Laws 1981, LB 346, § 2; Laws 1982, LB 787, § 1; Laws 1985, LB 255, § 31; Laws 1985, LB 447, § 12; Laws 1996, LB 1001, § 2; Laws 1998, LB 1041, § 21; Laws 1998, LB 1073, § 12; Laws 2010, LB800, § 13; Laws 2019, LB595, § 24.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

The state Department of Social Services is not required to institute a plan for rehabilitation of a parent whose child has been found to be dependent and neglected. In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274 (1990).

The juvenile code must be liberally construed to effectuate its purpose of securing the best interests of those juveniles who fall within it. In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987).

43-246.01. Juvenile court; exclusive original and concurrent original jurisdiction.

(1) The juvenile court shall have exclusive original jurisdiction as to:

(a) Any juvenile described in subdivision (3) or (11) of section 43-247;

(b) Any juvenile who was under sixteen years of age at the time the alleged offense was committed and the offense falls under subdivision (1) of section 43-247;

(d) Any juvenile who was under fourteen years of age at the time the alleged offense was committed and the offense falls under subdivision (2) of section 43-247.

(2)(a) The juvenile court shall also have exclusive original jurisdiction as to:

(i) Any juvenile who is alleged to have committed an offense under subdivision (1) of section 43-247 and who was sixteen years of age or seventeen years of age at the time the alleged offense was committed; and

(ii) Any juvenile who was fourteen years of age or older at the time the alleged offense was committed and the offense falls under subdivision (2) of section 43-247 except offenses enumerated in subdivision (1)(a)(ii) of section 29-1816.

(b) Proceedings initiated under subsection (2) of this section may be transferred as provided in section 43-274.

(3)(a) The juvenile court shall have concurrent original jurisdiction with the county court or district court as to:

(i) Any juvenile described in subdivision (4) of section 43-247;

(ii) Any proceeding under subdivision (6), (8), (9), or (10) of section 43-247; and

(iii) Any juvenile described in subdivision (1)(a)(ii) of section 29-1816.

(b) Proceedings initiated under subsection (3) of this section may be transferred as provided in section 43-274.

Source:Laws 2014, LB464, § 9; Laws 2015, LB265, § 3; Laws 2024, LB1051, § 4.
Effective Date: July 19, 2024

Annotations

Pursuant to subdivision (3)(c) of this section, whether a juvenile court has jurisdiction over a person is determined not by the person's age at the time of the offense, but, rather, by the person's age at the time he or she is charged for the offense. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).

County courts have not been given authority to decide motions to transfer to juvenile court in cases in which they lack jurisdiction to try the case. State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020).

A city or county attorney has authority to seek a transfer to the criminal court when both the juvenile court and the criminal court have statutory jurisdiction; the county court and district court have statutory jurisdiction over criminal matters, except in those instances where the Legislature has preserved such matters to the exclusive jurisdiction of the juvenile court, such as in subdivision (1) of this section. In re Interest of Luis D., 29 Neb. App. 495, 956 N.W.2d 25 (2021).

A juvenile fitting into the categories described in subdivisions (1) and (2) of this section must always be commenced in the juvenile court; however, proceedings initiated under subdivision (2) of this section are subject to transfer to the county or district court for further proceedings under the criminal code. In re Interest of Luis D., 29 Neb. App. 495, 956 N.W.2d 25 (2021).

Actions involving juveniles fitting into categories under subdivision (3) of this section may be initiated either in the juvenile court or in the county or district court and may be transferred as provided in section 43-274. In re Interest of Luis D., 29 Neb. App. 495, 956 N.W.2d 25 (2021).

Proceedings fitting under subdivision (1) of this section must always be filed via a juvenile petition and must always proceed to completion in the juvenile court. In re Interest of Luis D., 29 Neb. App. 495, 956 N.W.2d 25 (2021).

Subsection (3) of this section grants concurrent jurisdiction to the juvenile court and the county or district court over juvenile offenders who (1) are 11 years of age or older and commit a traffic offense that is not a felony or (2) are 14 years of age or older and commit a Class I, IA, IB, IC, ID, II, or IIA felony. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018).

43-246.02. Transfer of jurisdiction to district court; bridge order; criteria; records; modification.

(1) A juvenile court may terminate its jurisdiction under subdivision (3)(a) of section 43-247 by transferring jurisdiction over the juvenile's custody, physical care, and visitation to the district court through a bridge order, if all of the following criteria are met:

(a) The juvenile has been adjudicated under subdivision (3)(a) of section 43-247 in an active juvenile court case and a dispositional order in that case is in place;

(b) Paternity of the juvenile has been legally established, including by operation of law due to an individual's marriage to the mother at the time of conception, birth, or at any time during the period between conception and birth of the child; by operation of law pursuant to section 43-1409; by order of a court of competent jurisdiction; or by administrative order when authorized by law;

(d) The juvenile court has determined that its jurisdiction under subdivision (3)(a) of section 43-247 should properly end once orders for custody, physical care, and visitation are entered by the district court.

(2) When the criteria in subsection (1) of this section are met, a legal parent or guardian ad litem to a juvenile adjudicated under subdivision (3)(a) of section 43-247 in juvenile court may file a motion with the juvenile court for a bridge order under subsection (3) of this section. The parent is not required to intervene in the action. The motion shall be set for evidentiary hearing by the juvenile court no less than thirty days or more than ninety days from the date of the filing of the motion. The juvenile court, on its own motion, may also set an evidentiary hearing on the issue of a bridge order if such hearing is set no less than thirty days from the date of notice to the parties. The court may waive the evidentiary hearing if all issues raised in the motion for a bridge order are resolved by agreement of all parties and entry of a stipulated order.

(3) A motion for a bridge order shall:

(a) Allege that the juvenile court action filed under subdivision (3)(a) of section 43-247 may safely be closed once orders for custody, physical care, and visitation have been entered by the district court;

(b) State the relief sought by the petitioning legal parent or guardian ad litem;

(c) Disclose any other action or proceedings affecting custody of the juvenile, including proceedings related to domestic violence, protection orders, terminations of parental rights, and adoptions, including the docket number, court, county, and state of any such proceeding;

(d) State the names and addresses of any persons other than the legal parents who have a court order for physical custody or claim to have custody or visitation rights with the juvenile; and

(e) Name as a respondent any other person who has any relation to the controversy.

(4) A juvenile court shall designate the petitioner and respondent for purposes of a bridge order. A bridge order shall only address matters of legal and physical custody and parenting time. All other matters, including child support, shall be resolved by filing a separate petition or motion or by action of the child support enforcement office and shall be subject to existing applicable statutory provisions. No mediation or specialized alternative dispute resolution under section 42-364 shall be required in either district court or juvenile court where the juvenile has entered a bridge order. The Parenting Act shall not apply to the entry of the bridge order in juvenile or district court.

(5) When necessary and feasible, the juvenile court shall obtain child custody determinations from foreign jurisdictions pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.

(6) Upon transferring jurisdiction from a juvenile court to a district court, the clerk of the district court shall docket the case under either a new docket or any previous docket establishing custody or paternity of a child. The transfer of jurisdiction shall not result in new filing fees and other court costs being assessed against the parties.

(7) The district court shall give full force and effect to the juvenile court bridge order as to custody and parenting time and shall not modify the juvenile court bridge order without modification proceedings as provided in subsection (9) of this section.

(8) A district court shall take judicial notice of the juvenile court pleadings and orders in any hearing held subsequent to transfer. Records contained in the district court case file that were copied or transferred from the juvenile court file concerning the case shall be subject to section 43-2,108 and other confidentiality provisions of the Nebraska Juvenile Code, and such records shall only be disclosed, upon request, to the child support enforcement office without a court order.

(9) Following the issuance of a bridge order, a party may file a petition in district court for modification of the bridge order as to legal and physical custody or parenting time. If the petition for modification is filed within one year after the filing date of the bridge order, the party requesting modification shall not be required to demonstrate a substantial change of circumstance but instead shall demonstrate that such modification is in the best interests of the child. If a petition for modification is filed within one year after the filing date of the bridge order, filing fees and other court costs shall not be assessed against the parties.

(10) Nothing in this section shall be construed to require appointment of counsel for the parties in the district court action.

(11) Nothing in this section shall be construed to interfere with the jurisdictional provisions of section 25-2740.

Source:Laws 2017, LB180, § 1; Laws 2018, LB708, § 1.

Cross References

Parenting Act, see section 43-2920.

Uniform Child Custody Jurisdiction and Enforcement Act, see section 43-1226.

Annotations

A bridge order is not final for purposes of section 25-1902. In re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 (2019).

A bridge order "shall only address matters of legal and physical custody and parenting time," but it is not a domestic relations custody decree. In re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 (2019).

In enacting this section authorizing bridge orders, the Legislature crafted a solution for temporary continuity when the child is no longer in need of the juvenile court's protection; the juvenile court has made, through a dispositional order, a custody determination in the child's best interests; and the juvenile court does not wish to enter a domestic relations custody decree under the power granted by subsection (3) of section 25-2740. In re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 (2019).

The custody determination made by the juvenile court has no legally preclusive effect and will be made anew by the district court if either parent is discontent with the custody arrangement originally set forth by the bridge order. In re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 (2019).

A bridge order might, in some instances, be a reasonable alternative to termination of parental rights, but there is no burden on the State to prove that termination is the only reasonable alternative available. The only burden on the State is to prove, by clear and convincing evidence, that termination of parental rights is in the best interests of the child and that one or more of the conditions set out in section 43-292 exists. In re Interest of Madison T. et al., 30 Neb. App. 470, 970 N.W.2d 122 (2022).

Subdivision (1)(d) of this section indicates that a bridge order is appropriate only when the juvenile case can safely be closed. In this case, wherein the State sought to terminate the mother's parental rights to her children, placement of the children with their respective fathers may have been the best alternative while these cases were pending, but the record was not sufficient to conclude that the children's fathers should have been awarded permanent custody, at least at that time. Thus, it was not in the children's best interests for the juvenile court to terminate its jurisdiction over them. Because subdivision (1)(d) of this section had not been met, bridge orders were not in the children's best interests. In re Interest of Madison T. et al., 30 Neb. App. 470, 970 N.W.2d 122 (2022).

43-247. Juvenile court; jurisdiction.

The juvenile court in each county shall have jurisdiction of:

(1) Any juvenile who has committed an act other than a traffic offense which would constitute a misdemeanor or an infraction under the laws of this state, or violation of a city or village ordinance, and who was eleven years of age or older at the time the act was committed;

(2) Any juvenile who has committed an act which would constitute a felony under the laws of this state and who was eleven years of age or older at the time the act was committed;

(3) Any juvenile:

(a) Who is homeless or destitute, or without proper support through no fault of his or her parent, guardian, or custodian; who is abandoned by his or her parent, guardian, or custodian; who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian; whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such juvenile; whose parent, guardian, or custodian is unable to provide or neglects or refuses to provide special care made necessary by the mental condition of the juvenile; who is in a situation or engages in an occupation, including prostitution, dangerous to life or limb or injurious to the health or morals of such juvenile; or who has committed an act or engaged in behavior described in subdivision (1), (2), (3)(b), or (4) of this section and who was under eleven years of age at the time of such act or behavior;

(b) Who is eleven years of age or older and who (i) by reason of being wayward or habitually disobedient, is uncontrolled by his or her parent, guardian, or custodian; (ii) deports himself or herself so as to injure or endanger seriously the morals or health of himself, herself, or others; or (iii) is habitually truant from home or school; or

(4) Any juvenile who has committed an act which would constitute a traffic offense as defined in section 43-245 and who was eleven years of age or older at the time the act was committed;

(5) The parent, guardian, or custodian of any juvenile described in this section;

(6) The proceedings for termination of parental rights;

(7) Any juvenile who has been voluntarily relinquished, pursuant to section 43-106.01, to the Department of Health and Human Services or any child placement agency licensed by the Department of Health and Human Services;

(8) Any juvenile who was a ward of the juvenile court at the inception of his or her guardianship and whose guardianship has been disrupted or terminated;

(9) The adoption or guardianship proceedings for a child over which the juvenile court already has jurisdiction under another provision of the Nebraska Juvenile Code;

(10) The paternity or custody determination for a child over which the juvenile court already has jurisdiction;

(11) The proceedings under the Young Adult Bridge to Independence Act; and

(12) Except as provided in subdivision (11) of this section, any individual adjudged to be within the provisions of this section until the individual reaches the age of majority or the court otherwise discharges the individual from its jurisdiction.

Notwithstanding the provisions of the Nebraska Juvenile Code, the determination of jurisdiction over any Indian child as defined in section 43-1503 shall be subject to the Nebraska Indian Child Welfare Act; and the district court shall have exclusive jurisdiction in proceedings brought pursuant to section 71-510.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Paternity determinations, jurisdiction, see section 25-2740.

Young Adult Bridge to Independence Act, see section 43-4501.

Annotations

1. Jurisdiction of court

2. Appeal of order

3. Termination of parental rights

4. Rehabilitation plan

5. Placement with Department of Health and Human Services

6. Presence of child

7. Evidence

8. Abused or neglected child

9. Miscellaneous

1. Jurisdiction of court

The determination of whether an individual is a "juvenile" within the provisions of this section should be based on the individual's age on the date when that individual was charged with an offense. If an individual is a "juvenile" on the date he or she is charged with an offense, the juvenile court may exercise jurisdiction over that individual under the relevant subsection and may continue to exercise jurisdiction under subsection (12) of this section until the individual reaches the age of majority. State v. Aldana Cardenas, 314 Neb. 544, 990 N.W.2d 915 (2023).

The purpose of the adjudication phase is to protect the interests of the child. The parents' rights are determined at the dispositional phase, not at the adjudication phase. At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under subdivision (3)(a) of this section, the State must prove the allegations of the petition by a preponderance of the evidence. In re Interest of Xandria P., 311 Neb. 591, 973 N.W.2d 692 (2022).

Pursuant to subdivision (12) of this section, whether a juvenile court has jurisdiction over a person is determined not by the person's age at the time of the offense, but, rather, by the person's age at the time he or she is charged for the offense. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).

At the adjudication stage, pursuant to subdivision (3)(a) of this section, in order for a juvenile court to assume jurisdiction of minor children, the State must prove the allegations of the petition by a preponderance of the evidence. In re Interest of Prince R., 308 Neb. 415, 954 N.W.2d 294 (2021).

To obtain jurisdiction over a juvenile at the adjudication stage, the court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subdivision of this section. In re Interest of Prince R., 308 Neb. 415, 954 N.W.2d 294 (2021).

To obtain jurisdiction over a juvenile and the juvenile's parents, the court's only concern is whether the condition in which the juvenile presently finds himself or herself fits within the asserted subdivision of this section. In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).

Under the former law, a juvenile's noncompliance with the compulsory education statutes, found in chapter 79 of the Nebraska Revised Statutes, without being first excused by school authorities established truancy and granted the juvenile court jurisdiction under subdivision (3)(b) of this section. In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014).

Neither domicile of the minor child's parents nor birth of the child in the state is sufficient to provide subject matter jurisdiction under subsection (3) of this section when the minor child is not found within the state's borders and has never resided here. In re Interest of Violet T., 286 Neb. 949, 840 N.W.2d 459 (2013).

Under the former subdivision (11) of this section, a juvenile court cannot acquire jurisdiction over a custody determination unless a party has previously filed a complaint for a dissolution or a custody modification in district court. Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

Under section 43-285(2), once a child has been adjudicated under subsection (3) of this section, the juvenile court ultimately decides where a child should be placed. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).

Under this section, when a juvenile has been charged with a felony, the district court and the juvenile court have concurrent jurisdiction, but the jurisdiction of the juvenile court ends when the individual reaches the age of majority, while the district court's jurisdiction continues. State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).

Absent any provision affirmatively stating otherwise, it is within the juvenile court's discretion to issue whatever combination of statutorily authorized dispositions as the court deems necessary to protect the juvenile's best interests. In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).

It is within the juvenile court's statutory power to issue a dispositional order for juveniles adjudicated under subsection (3)(b) of this section, which includes both legal custody with the Department of Health and Human Services and supervision by a probation officer. In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).

Under this section and section 43-408(2), a juvenile court has jurisdiction over an adjudicated juvenile whom the court has placed at a youth rehabilitation and treatment center. But despite that jurisdiction, section 43-408(2) prohibits a juvenile court from reviewing the progress of a juvenile whom the court has placed at a youth rehabilitation and treatment center. In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

When a court adjudicates a juvenile under both subsections (2) and (3) of this section and commits the juvenile to the Office of Juvenile Services with a placement at a youth rehabilitation and treatment center, it has determined that the subsection (2) adjudication will control the juvenile's disposition. The disposition determination controls which review hearing statute applies, and the requirement in section 43-278 for 6-month review hearings does not authorize the court to conduct review hearings. In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

To obtain jurisdiction over a juvenile, the court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of this section. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

Where a juvenile is adjudicated solely on the basis of habitual truancy from school under subsection (3)(b) of this section and the status of truancy is subsequently terminated by the lawful execution of a parental release authorizing discontinuation of school pursuant to subsection (3)(d) of section 79-201, a juvenile court may terminate its jurisdiction without a finding that such termination is in the best interests of the juvenile. In re Interest of Kevin K., 274 Neb. 678, 742 N.W.2d 767 (2007).

Subject matter jurisdiction is vested in the juvenile court by an adjudication that a child is a juvenile described in subsection (3)(a) of this section, and pursuant to subsection (5) of this section, the juvenile court's jurisdiction is extended to parents who have custody of any juvenile who has been found to be a child described in this section. In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758 (2005).

In order for a juvenile court to assume jurisdiction of minor children under subsection (3)(a) of this section, the State must prove the allegations of the petition by a preponderance of the evidence. The court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of this section. In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647 (2005).

When a juvenile court has obtained exclusive jurisdiction over a minor under this section, the district court lacks jurisdiction to hear an action seeking grandparent visitation. Ponseigo v. Mary W., 267 Neb. 72, 672 N.W.2d 36 (2003).

The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of this section pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to section 43-254, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of section 43-292. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

A county court's jurisdiction over a previously established guardianship must yield to the juvenile court's exclusive jurisdiction over a minor and his or her guardian if the juvenile court determines that there is a sufficient factual basis for an adjudication under this section. In re Interest of Sabrina K., 262 Neb. 871, 635 N.W.2d 727 (2001).

Under this section, once a minor is adjudged to be within the jurisdiction of the juvenile court, the juvenile court shall have exclusive jurisdiction as to any such juvenile and as to the parent, guardian, or custodian who has custody of any juvenile described within this section. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000); In re Interest of Miah T. & DeKandyce H., 23 Neb. App. 592, 875 N.W.2d 1 (2016).

When a minor is adjudged to be within the jurisdiction of the juvenile court, a guardianship appointment must be made pursuant to the juvenile code. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000).

Proof of venue is immaterial to the determination of whether a juvenile falls within the meaning of this section. In re Interest of Leo L. II, 258 Neb. 877, 606 N.W.2d 783 (2000).

The plain language of subsection (6) of this section states that the juvenile court shall have jurisdiction of the proceedings for termination of parental rights as provided in the Nebraska Juvenile Code. Subsection (6) of this section and section 43-291 indicate that the juvenile court may properly acquire jurisdiction over an original action to terminate parental rights as provided in the Nebraska Juvenile Code without prior juvenile court action, including adjudication. In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).

Subsection (3)(b) of this section does not give a juvenile court the power to interfere with a parent's rights over a nonadjudicated child. In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996).

The trial court did not err in basing a finding of juvenile court jurisdiction upon the father's two prior convictions for committing sex crimes against children, his lack of treatment for his sexual disorder, and upon the mother's inability to prevent unsupervised contact between the father and the children, even though no evidence of inappropriate contact by the father with the children existed. In re Interest of M.B. and A.B., 239 Neb. 1028, 480 N.W.2d 160 (1992).

Verification of a petition alleging a child to be a juvenile within subsection (3)(a) of this section is not required to vest jurisdiction in a juvenile court. In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91 (1986).

The juvenile court has exclusive original jurisdiction as to a child who is habitually truant from school, regardless of whether the reason for truancy is an act of the child or parent. The cause of the truancy is insignificant. In re Interest of K.S., 216 Neb. 926, 346 N.W.2d 417 (1984).

Prior to adjudicating a child under this section, a juvenile court lacks jurisdiction over the juvenile's parents, guardians, or custodians. In re Interest of Marquee N., 30 Neb. App. 862, 974 N.W.2d 26 (2022).

At the adjudication stage, in order for a juvenile court to assume jurisdiction of a minor child, the State must prove the allegations of the petition by a preponderance of the evidence, and the court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of this section. In re Interest of Darius A., 24 Neb. App. 178, 884 N.W.2d 457 (2016).

This section grants to the juvenile court exclusive jurisdiction as to any juvenile defined in subsection (3) and, under subsection (5), jurisdiction over the parent, guardian, or custodian who has custody of such juvenile. In re Interest of Trenton W. et al., 22 Neb. App. 976, 865 N.W.2d 804 (2015).

The juvenile court shall have exclusive original jurisdiction as to the parties and proceedings provided in subsections (5), (6), and (8) of this section. In re Interest of Jordana H. et al., 22 Neb. App. 19, 846 N.W.2d 686 (2014).

At the adjudication stage, in order for a juvenile court to assume jurisdiction of a minor child under subsection (3)(a) of this section, the State must prove the allegations of the petition by a preponderance of the evidence, and the court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of this section. In re Interest of Laticia S., 21 Neb. App. 921, 844 N.W.2d 841 (2014).

Subsection (9) of this section provides the juvenile court jurisdiction over the guardianship proceedings of a juvenile described elsewhere within the code. In re Interest of Brianna B., 21 Neb. App. 657, 842 N.W.2d 191 (2014).

Subsection (3)(a) of this section provides that the juvenile court in each county shall have jurisdiction over any juvenile who lacks proper parental care by reason of the fault or habits of the child's parent, guardian, or custodian. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011).

This section gives the juvenile courts exclusive original jurisdiction as to any juvenile defined in subsection (3) of this section. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011).

This section, combined with sections 24-517 and 25-2740, vests juvenile courts and county courts sitting as juvenile courts with jurisdiction over a custody modification proceeding if the court already has jurisdiction over the juvenile under a separate provision of this section. In re Interest of Ethan M., 18 Neb. App. 63, 774 N.W.2d 766 (2009).

Pursuant to subdivision (10) of this section and section 30-2608(e), guardianship was properly docketed in the county court and heard by a separate juvenile court judge. In re Guardianship of Brenda B. et al., 13 Neb. App. 618, 698 N.W.2d 228 (2005).

Pursuant to subdivision (5) of this section, the juvenile court does not obtain jurisdiction over a juvenile's parent, guardian, or custodian until a finding of adjudication. In re Interest of Meley P., 13 Neb. App. 195, 689 N.W.2d 875 (2004).

Under subsection (3)(a) of this section, the juvenile court continues to have jurisdiction over adjudicated children, either until their age of majority or until they become adopted, and until such time, the court has the authority to enter orders that are in the best interests of the children. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

Only the county attorney can initiate proceedings in juvenile court under subsections (1) through (4) of this section. In re Interest of Valentin V., 12 Neb. App. 390, 674 N.W.2d 793 (2004).

Pursuant to subsection (1) of this section, the juvenile court has jurisdiction of any juvenile who has committed an act other than a traffic offense which would constitute a misdemeanor or an infraction under the laws of this state. In re Interest of Steven K., 11 Neb. App. 828, 661 N.W.2d 320 (2003).

A juvenile court's commitment of a juvenile to a youth rehabilitation treatment center does not constitute a discharge within the meaning of this section, and therefore, the juvenile court retains jurisdiction. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).

When a minor has been adjudicated a juvenile as defined under subsection (3) of this section and the juvenile court retains jurisdiction, a probate court cannot appoint a guardian of that juvenile without the consent of the juvenile court. In re Guardianship of Alice D. et al., 4 Neb. App. 726, 548 N.W.2d 18 (1996).

Jurisdiction of a juvenile court under subsection (3)(a) of this section is dependent upon whether the child is in need of care at the commencement of the proceedings and not on whether a parent is allowed to participate in the proceedings. In re Interest of Amanda H., 4 Neb. App. 293, 542 N.W.2d 79 (1996).

2. Appeal of order

An order changing a permanency plan in a juvenile case adjudicated under subdivision (3)(a) of this section does not necessarily affect a substantial right of the parent for purposes of the final order statute, section 25-1902, when the order continues prior orders directed at family preservation and reunification or remedying the reasons that led to the adjudication. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

In a juvenile case adjudicated under subsection (3)(a) of this section, an order that continues prior dispositional orders but changes the permanency objective from family reunification to another objective, is a final, appealable order under the final order statute, section 25-1902, only if the parent's ability to achieve rehabilitation and family reunification has been clearly eliminated, because such an order affects a substantial right. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

Subsequent review orders in a juvenile case adjudicated under subdivision (3)(a) of this section do not typically affect a substantial right for purposes of appeal under the final order statute, section 25-1902, because the parent has been given the full and fair opportunity to respond to the allegations at the adjudication stage. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

A judicial determination made following an adjudication in a special proceeding which affects the substantial right of parents to raise their children is a final, appealable order. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

A dispositional order in which a juvenile court declines to order a rehabilitation plan for parents of a child adjudicated under subsection (3)(a) of this section is a final, appealable order. A juvenile court is not required to order or implement a rehabilitation plan for the parent of a child adjudicated under subsection (3)(a) of this section if the plan has very little chance of success and is not in the best interests of the child. Where a child's substantial medical needs resulting from injury caused by parental abuse necessitated 24-hour daily nursing care for the child, the juvenile court did not err in accepting recommendation of the Department of Health and Human Services that no rehabilitation plan be implemented to reunite a child with his or her parents. In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).

A detention order issued under subsection (3)(a) of this section and section 43-254 after a hearing which continues to withhold the custody of a juvenile from the parent pending an adjudication hearing to determine whether the juvenile is neglected is a final order and thus appealable. Thus, where an appeal from such an order has been perfected, a trial court is without jurisdiction to terminate parental rights until resolution of the parent's appeal from the original detention order regarding that child. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).

Proceedings under this section are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the trial court's finding; however, where the evidence is in conflict, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. After a determination pursuant to this section that juveniles are within subsection (3)(a) of this section, and before entering an order containing a rehabilitative plan for a parent, the juvenile court shall inform the parent that the court may order such a plan, and shall hold a hearing and make findings on the record to determine reasonable provisions material to the plan's rehabilitative object of correcting, eliminating, or ameliorating the situation or condition upon which the adjudication was based. In re Interest of L.P. and R.P., 240 Neb. 112, 480 N.W.2d 421 (1992).

An ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time pending a hearing as to whether the detention should be continued is not final; however, a detention order entered after a hearing continuing to keep a juvenile's custody from his or her parent pending an adjudication hearing to determine whether the juvenile is neglected, and thus within the purview of subsection (3)(a) of this section, is final and thus appealable. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991).

An order finding a child to be a juvenile as described in subsection (3)(a) of this section is an adjudication order, which is an appealable order. Notice of appeal must be filed within 30 days from the rendition of the judgment; after expiration of the 30 days, the order may not be reviewed. In re Interest of Z.R., 226 Neb. 770, 415 N.W.2d 128 (1987).

The standard of review applicable to a juvenile proceeding under this section is de novo on the record. In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987).

Although an ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time is not final, an order under section 43-254 and subsection (3)(a) of this section after a hearing which continues to keep a juvenile's custody from the parent pending an adjudication hearing is final and thus appealable. In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).

Pursuant to subsection (3)(a) of this section, an order changing the placement of a juvenile who has been adjudicated under this section affects a substantial right of the State and is a final and appealable order. In re Interest of Tanisha P. et al., 9 Neb. App. 344, 611 N.W.2d 418 (2000).

An adjudication under this section of the Nebraska Juvenile Code is an appealable order. In re Interest of Simon H., 8 Neb. App. 225, 590 N.W.2d 421 (1999).

Although an ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time is not final, one entered under this section, after a hearing which continues to keep a juvenile's custody from the parent pending an adjudication hearing to determine whether the juvenile is neglected, is final and thus appealable. In re Interest of Cassandra L. & Trevor L., 4 Neb. App. 333, 543 N.W.2d 199 (1996).

3. Termination of parental rights

When a court knows that a parent is incarcerated or confined nearby, it should take steps, without request, to afford the parent due process before adjudicating a child or terminating the parent's parental rights. In re Interest of Landon H., 287 Neb. 105, 841 N.W.2d 369 (2013).

Where a juvenile has been adjudicated pursuant to subsection (3)(a) of this section and a permanency objective of adoption has been established, a juvenile court has authority under the juvenile code to order the Nebraska Department of Health and Human Services to accept a tendered relinquishment of parental rights. In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).

Pursuant to this section, a child, not the parent, is adjudicated in order to protect the child's rights. The rights of a parent are determined in the dispositional phase of the case. In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758 (2005).

A court is not prohibited from considering prior events when determining whether to terminate parental rights, but the court may need to consider the reasonableness of a plan or its individual provisions. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

Evidence that established (1) a child sustained injuries of a nature not likely to occur in the normal course of the child's movement, (2) such injuries would have some physical manifestations associated with them, and (3) the parent failed to seek medical treatment for 2 to 4 weeks is sufficient to find the child is a neglected child within the Nebraska Juvenile Code. In re Interest of A.L.G., 230 Neb. 732, 432 N.W.2d 852 (1988).

Where parents are unable or unwilling to rehabilitate themselves within a reasonable time, the best interests of the child require that parental rights be terminated. In re Interest of N.B., 230 Neb. 717, 432 N.W.2d 850 (1988).

Where poor housekeeping degenerates into a continuing health hazard, the best interests of the children require termination of parental rights. In re Interest of E.R., J.R., and A.R., 230 Neb. 646, 432 N.W.2d 834 (1988).

Section 43-292(6) does not require the court to proceed under that subsection whenever a determination has been made under this section; the court may terminate parental rights when it appears that any one of the six conditions under section 43-292 has been met. In re Interest of J.A. and T.A., 229 Neb. 271, 426 N.W.2d 277 (1988).

Pursuant to subsection (6) of section 43-292, termination of parental rights requires a finding that following a determination that the juvenile is one as described in subsection (3)(a) of this section, reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court, have failed to correct the conditions leading to the determination. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

This section allows the juvenile court to "otherwise discharge" the juvenile from its jurisdiction without providing any limitations on the reasons for the court to order such discharge. In re Interest of Steven K., 11 Neb. App. 828, 661 N.W.2d 320 (2003).

Pursuant to subsection (3)(a) of this section, the trial court's failure to advise a mother of her rights, of the possible dispositions, or of the nature of juvenile court proceedings arising from the State's petition alleging that the mother inappropriately disciplined her 20-month-old child and that the child was without proper parental care through the mother's fault or habits violated the mother's due process rights, even though the mother vigorously defended against the charges. In re Interest of Billie B., 8 Neb. App. 791, 601 N.W.2d 799 (1999).

In the absence of an adjudication petition and hearing in compliance with this section, an order purporting to terminate parental rights pursuant to section 43-292 is a nullity. In re Interest of Joelyann H., 6 Neb. App. 472, 574 N.W.2d 185 (1998).

4. Rehabilitation plan

A dispositional order imposing a rehabilitation plan for parents in a juvenile case is a final, appealable order. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

The purpose of section 43-292(6) is to advance the best interests of the child by giving the juvenile court power to terminate parental rights where the grounds for adjudicating the child within subsection (3)(a) of this section have not been corrected. Whether a parent is willful or not in his or her noncompliance with a rehabilitation plan is not directly relevant to this purpose. While it is true that one purpose of a rehabilitation plan is to ameliorate the particular conditions that serve as the basis for an allegation supporting the adjudication that a child is within the meaning of subsection (3)(a) of this section, a rehabilitation plan also has the larger goal of reuniting the child with the parent. To advance this goal, the juvenile court has broad discretion to prescribe a reasonable plan to rehabilitate a parent whose child has been adjudicated to be within the meaning of subsection (3)(a) of this section. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).

After an adjudication hearing and before entering an order with a rehabilitation plan for a parent, the court shall inform the parent that a rehabilitation plan may be ordered and shall hold a hearing to determine reasonable provisions. The court's findings of fact supporting the provisions of the rehabilitation plan shall be stated in the record. Petition must allege that the parent's poor parenting skills adversely affected the child in question. In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992).

After an adjudication under subdivision (3)(a) of this section and before entering an order containing a rehabilitative plan for a parent, a juvenile court shall inform the juvenile's parents that the court may order a rehabilitative plan and thereafter shall hold an evidentiary hearing to determine reasonable provisions material to the parental plan's rehabilitative objective of correcting, eliminating, or ameliorating the situation or condition on which the adjudication has been obtained. In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).

5. Placement with Department of Health and Human Services

Pursuant to subdivision (8) of this section, it was not necessary for the State to file a second supplemental petition to return two wards to the custody of the Department of Health and Human Services after their guardianships were disrupted because the juvenile court retained jurisdiction over the wards pursuant to section 43-1312.01(3). In re Interest of Mekhi S. et al., 309 Neb. 529, 960 N.W.2d 732 (2021).

A juvenile court need not ensure that every conceivable probationary condition has been tried and failed before it may place a juvenile at a youth rehabilitation and treatment center. Nor does section 43-286 require that supervisory conditions of a juvenile previously classified as a neglect case under subdivision (3)(a) of this section must 'start over- when the matter becomes a delinquency case and subject to the Office of Juvenile Services. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

The Nebraska Department of Health and Human Services is responsible for the costs of placing and caring for juveniles within its custody, regardless of which subsection of this section that juvenile is adjudicated under. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).

A juvenile court has no statutory authority to place children adjudged under subsection (1) with the Department of Social Services. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).

Disposition of juveniles adjudicated as falling within this section is pursuant to sections 43-283 to 43-2,101. Juveniles adjudged under subsection (3)(a) or (b) may be placed under the custody and care of the Department of Social Services. Juvenile courts have broad discretion as to the disposition of children found to be neglected under this section. In re Interest of V.T. and L.T., 220 Neb. 256, 369 N.W.2d 94 (1985).

The burden is upon the State to allege and prove in a detention hearing that the juvenile court should not place children with their other natural parent after the expiration of the first 48 hours of emergency detention under subsection (4) of section 43-250 during a period of temporary detention pending adjudication spawned by allegations under subsection (3)(a) of this section against their custodial parent. In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).

In addition to lacking the authority to order the Department of Health and Human Services to supervise a juvenile's probation, the juvenile court also lacks the authority to order the Department of Health and Human Services to supervise a juvenile's house arrest or to oversee a juvenile's payment of restitution. In re Interest of Juan L., 6 Neb. App. 683, 577 N.W.2d 319 (1998).

6. Presence of child

It is within the trial court's discretion whether or not to permit a child to be present at an adjudication hearing in a proceeding pursuant to subsection (3)(a) of this section. In re Interest of D.D.P., 235 Neb. 864, 458 N.W.2d 193 (1990).

7. Evidence

Although the Legislature did not specify a standard of proof under subsection (3)(c) of this section, the section does reference the Mental Health Commitment Act. Mental health commitments have been made under a clear and convincing evidence standard in Nebraska for approximately the last 30 years, and the Nebraska Supreme Court finds no reason to apply a different standard of proof in a juvenile case. In re Interest of Christopher T., 281 Neb. 1008, 801 N.W.2d 243 (2011).

Subsection (3)(a) of this section is not void for vagueness because it is interpreted in light of its common understanding. At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under subsection (3)(a) of this section, the State must prove the allegations of the petition by a preponderance of the evidence. In re Interest of T.M.B. et al., 241 Neb. 828, 491 N.W.2d 58 (1992).

Evidence was sufficient to establish minors were in a situation dangerous to life or limb or injurious to their health or morals. In re Interest of D.P.Y. and J.L.Y., 239 Neb. 647, 477 N.W.2d 573 (1991).

The fact that a juvenile comes within the purview of this section must be established by a preponderance of the evidence. In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991).

Subsection (3)(a) of this section requires that the State prove the allegations set forth in the adjudication petition by a preponderance of the evidence in cases involving both non-Indian and Indian children. In re Interest of Mischa S., 22 Neb. App. 105, 847 N.W.2d 749 (2014).

Although the State need not prove that the juvenile has suffered physical harm to find the juvenile to be within the meaning of subsection (3)(a) of this section, the State must establish that without intervention, there is a definite risk of future harm. In re Interest of Chloe P., 21 Neb. App. 456, 840 N.W.2d 549 (2013).

Subsection (3)(a) of this section requires that the State prove the allegations in the petition by a preponderance of the evidence in cases involving both non-Indian and Indian children. In re Interest of Emma J., 18 Neb. App. 389, 782 N.W.2d 330 (2010).

Circumstantial evidence may be sufficient to prove that a child is a juvenile within the meaning of subsection (3)(a) of this section where the record shows (1) a parent's control over the child during the period when the abuse or neglect occurred and (2) multiple injuries or other serious impairment of health have occurred which ordinarily would not occur in the absence of abuse or neglect. In re Interest of McCauley H., 3 Neb. App. 474, 529 N.W.2d 77 (1995).

8. Abused or neglected child

In the context of denying parental preference in a placement decision during proceedings under subdivision (3)(a) of this section, reasonable notice must include the factual bases for seeking to prove that the parent is unfit or has forfeited parental rights or that exceptional circumstances exist involving serious physical or psychological harm to the child or a substantial likelihood of such harm. In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).

When the allegations of a petition for adjudication invoking the jurisdiction of the juvenile court are against one parent only, the State cannot deny the request of the other parent⁚who has acquired constitutionally protected parental status⁚for temporary physical custody in lieu of a foster care placement, unless it pleads and proves by a preponderance of the evidence that the other parent is unfit or has forfeited custody or that there are exceptional circumstances involving serious physical or psychological harm to the child or a substantial likelihood of such harm. In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).

"Parental" as used in the phrase "lacks proper parental care" describes the type and nature of care rather than the relationship of the person providing it. In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).

"Proper parental care" includes providing a home, support, subsistence, education, and other care necessary for the health, morals, and well-being of the child. It commands special care for the children in special need because of mental condition. It commands that the child not be placed in situations dangerous to life or limb, and not be permitted to engage in activities injurious to his or her health or morals. In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).

The juvenile court properly declined to adjudicate two children who received proper parental care from their grandmother and were not at risk of harm from their mother; however, the court erred in failing to adjudicate a newborn, who lacked proper parental care as demonstrated by his mother's drug use during pregnancy until the time of his birth. In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).

While the State need not prove that a child has actually suffered physical harm to assert jurisdiction, Nebraska case law is clear that at a minimum, the State must establish that without intervention, there is a definite risk of future harm. In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).

Once a plan of reunification has been ordered to correct the conditions underlying the adjudication under subsection (3)(a) of this section, the plan must be reasonably related to the objective of reuniting the parent with the child. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

Given the broad power granted by the Legislature to juvenile courts to determine whether in proceedings under subsection (3)(a) of this section the guardian ad litem role and the role of counsel for the juvenile should be split, an appellate court reviews the decision to use or not use that power de novo on the record for an abuse of discretion. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

The determination whether "special reasons" exist for appointing separate counsel for a juvenile in proceedings under subsection (3)(a) of this section must be based on a case-by-case basis, taking into consideration the totality of the circumstances. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

When an attorney is appointed for a juvenile under subsections (2) and (3) of section 43-272 in proceedings under subsection (3)(a) of this section, the attorney generally serves as both guardian ad litem and as counsel for the child. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

Section 43-258 does not apply to requests for mental and physical examinations after a juvenile has been adjudicated under subsection (3)(a) of this section. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

A guardian's admission of allegations of abuse in a juvenile petition is a sufficient basis for an adjudication under this section when evidence shows that a parent has previously lost custody of his or her natural child and plays no role in the child's living conditions at the time the child is taken into custody. In re Interest of Sabrina K., 262 Neb. 871, 635 N.W.2d 727 (2001).

A petition brought under subsection (3)(a) of this section is brought on behalf of the child, not to punish the parents. In re Interest of Danielle D. et al., 257 Neb. 198, 595 N.W.2d 544 (1999).

Pursuant to subsection (3) of this section, while the State's parens patriae interest in the welfare of a child authorizes it to initiate abuse and neglect proceedings pursuant to this section and request temporary custody pending adjudication, the denial of such a request does not affect any substantial right of the State. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).

Under subsection (3)(a) of this section, a petition filed under this section is brought on behalf of the child, not to punish the parents. In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996).

The dual purpose of proceedings brought under subsection (3)(a) of this section on the ground that a juvenile is homeless, destitute, or without proper support through no fault of the parents, guardian, or custodian is to protect the welfare of the minor and to safeguard the parents' right to properly raise their own child, and a petition thereunder is brought on behalf of the child, not to punish the parents. In re Interest of Constance G., 247 Neb. 629, 529 N.W.2d 534 (1995).

The juvenile court has broad discretion as to the disposition of children neglected as defined in subdivision (3)(a) of this section. In re Interest of K.L.C. and K.C., 227 Neb. 76, 416 N.W.2d 18 (1987).

Evidence that a child's mother took an unprescribed morphine pill was insufficient to adjudicate the child when there was no evidence that the child was affected by the mother's ingestion of the pill or any other evidence that the mother's taking the pill placed the child at risk for harm. In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012).

Evidence that a nearly 2-year-old child was left unsupervised outside for a few minutes was insufficient to establish a definite risk of future harm. In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012).

9. Miscellaneous

There is no presumption that a disabled parent is unfit, that a disabled parent has forfeited parental rights, or that exceptional circumstances exist involving serious physical or psychological harm to the child or a substantial likelihood of such harm because a parent is disabled. In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).

The factual allegations of a petition seeking to adjudicate a child must give a parent notice of the bases for seeking to prove that the child is within the meaning of the statute. In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).

A parent's absenteeism cannot defeat the juvenile court's authority to promote and protect a juvenile's best interests under subdivision (3)(b) of this section. In re Interest of Reality W., 302 Neb. 878, 925 N.W.2d 355 (2019).

A juvenile court may not, under section 43-285(2), change a juvenile's permanency plan from family reunification to guardianship unless there has been a prior adjudication of the juvenile under subdivision (3)(a) of this section, which adjudication is a requirement under section 43-1312.01 for establishing a juvenile guardianship. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

In a juvenile adjudication under subdivision (3)(c) of this section, no determination is made of a parent's ability to care for his or her child. Nor does the parent have the opportunity to respond to the allegations in the petition, because the allegations relate only to the juvenile and not to the parent. The absence of an opportunity for parents to respond to allegations about their fitness to raise their children implicates their due process rights. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

In a juvenile case adjudicated under subdivision (3)(a) of this section, a parent has both the opportunity and the incentive to contest and appeal the adjudication, which the parent does not have when the child is adjudicated under subdivision (3)(c) of this section. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

In a juvenile case adjudicated under subdivision (3)(a) of this section, a parent has the opportunity to deny a petition's allegations, whereas in an adjudication under subdivision (3)(c), the juvenile responds but parents have no statutory right to respond. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

Subdivision (3)(c) of this section is substantially different from subsection (3)(a), which, generally speaking, applies to situations in which a juvenile lacks proper parental care, support, or supervision. Because a subdivision (3)(a) adjudication addresses the issue of parental fitness, significant legal consequences can flow from such an adjudication and greater procedural protections are required. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

Pursuant to subdivision (1) of this section, a juvenile court does not have the statutory authority to order detention while a juvenile remains on probation. In re Interest of Dakota M., 279 Neb. 802, 781 N.W.2d 612 (2010).

The county attorney's coordinated effort with the school and its letter referring the family to various available community-based resources, including website resources, as well as specific contact information for a "Truancy Resource Specialist," complied with the "reasonable efforts" requirement of subsection (2) of section 43-276 as applied to the habitual truancy provision of subdivision (3)(b) of this section. In re Interest of Hla H., 25 Neb. App. 118, 903 N.W.2d 664 (2017).

Compulsory education statutes and juvenile code statutes regarding the neglect of children generally do not pertain to the same subject matter and should not be construed in pari materia. In re Interest of Laticia S., 21 Neb. App. 921, 844 N.W.2d 841 (2014).

Subsection (3)(a) of this section establishes the juvenile court's jurisdiction over a minor child, while sections 79-201 and 79-210 make the minor child's parents or legal guardians culpable for the child's truancy. The county attorney is free to decide whether to proceed utilizing the juvenile code or the compulsory education laws. In re Interest of Laticia S., 21 Neb. App. 921, 844 N.W.2d 841 (2014).

The school's duty to provide services in an attempt to address excessive absenteeism comes from section 79-209, relating to compulsory attendance and the possibility of a parent's being subjected to a criminal sanction. The school has no duty to provide reasonable efforts before an adjudication under subsection (3)(a) of this section of the juvenile code. In re Interest of Laticia S., 21 Neb. App. 921, 844 N.W.2d 841 (2014).

Section 43-274(1) authorizes a county attorney with knowledge of a juvenile in his or her county falling within the purview of subsection (3)(a) of this section to file a petition in that county's juvenile court. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011).

Pursuant to subsection (3)(a) of this section, a mother was not properly placed on notice that her mental health would be the basis for seeking to prove an allegation that her child lacked proper parental care and was at risk of harm through the mother's fault when the allegations in a termination of parental rights petition concerned only the condition of her house and the lack of appropriate food for her child and did not mention the mother's mental health. In re Interest of Christian L., 18 Neb. App. 276, 780 N.W.2d 39 (2010).

In the exercise of its jurisdiction over a custody modification proceeding, a county court sitting as a juvenile court cannot permanently modify child custody through the mere adoption of a case plan pursuant to section 43-285(2). In re Interest of Ethan M., 18 Neb. App. 63, 774 N.W.2d 766 (2009).

A juvenile case brought under subsection (3)(a) of this section fits the definition of a "child custody proceeding" under section 43-1227(4) of the Uniform Child Custody Jurisdiction and Enforcement Act. In re Interest of Maxwell T., 15 Neb. App. 47, 721 N.W.2d 676 (2006).

The dual purpose of proceedings brought under subsection (3)(a) of this section, to protect the welfare of the child and to safeguard the parent's right to properly raise his or her own child, is applicable even though the allegation is that the child lacks proper parental care by reason of the fault or habits of his or her parent. In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).

43-247.01. Transferred to section 43-247.03.

43-247.02. Juvenile court; placement or commitment of juveniles; restrictions.

(1) Notwithstanding any other provision of Nebraska law, a juvenile court shall not:

(a) Place any juvenile adjudicated or pending adjudication under subdivision (1), (2), (3)(b), or (4) of section 43-247 with the Department of Health and Human Services or the Office of Juvenile Services, other than as allowed under subsection (2) of this section;

(b) Commit any juvenile adjudicated or pending adjudication under subdivision (1), (2), (3)(b), or (4) of section 43-247 to the care and custody of the Department of Health and Human Services or the Office of Juvenile Services, other than as allowed under subsection (2) of this section;

(c) Require the Department of Health and Human Services or the Office of Juvenile Services to supervise any juvenile adjudicated or pending adjudication under subdivision (1), (2), (3)(b), or (4) of section 43-247, other than as allowed under subsection (2) of this section; or

(d) Require the Department of Health and Human Services or the Office of Juvenile Services to provide, arrange for, or pay for any services for any juvenile adjudicated or pending adjudication under subdivision (1), (2), (3)(b), or (4) of section 43-247, or for any party to cases under those subdivisions, other than as allowed under subsection (2) of this section.

(2) Notwithstanding any other provision of Nebraska law, a juvenile court shall not commit a juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center except as part of an order of intensive supervised probation under subsection (1) of section 43-286.

Source:Laws 2013, LB561, § 8; Laws 2020, LB1148, § 9; Laws 2024, LB1051, § 6.
Effective Date: July 19, 2024

Cross References

Juvenile Services Act, see section 43-2401.

Annotations

For purposes of this section, the date a juvenile is committed to the Office of Juvenile Services for treatment is controlling, not the date of a subsequent transfer to a youth rehabilitation and treatment center. In re Interest of Marcella G., 287 Neb. 566, 847 N.W.2d 276 (2014).

Where a juvenile was committed to the Office of Juvenile Services for community-based services before July 1, 2013, a juvenile court's transfer of the juvenile after that date to a youth rehabilitation and treatment center was not required to be made as a condition of intensive supervised probation. In re Interest of Marcella G., 287 Neb. 566, 847 N.W.2d 276 (2014).

43-247.03. Restorative justice practices; confidential; privileged communications.

(1) In any juvenile case, the court may provide the parties the opportunity to address issues involving the child's care and placement, services to the family, and other concerns through restorative justice practices. Restorative justice practices may include, but are not limited to, prehearing conferences, family group conferences, expedited family group conferences, child welfare mediation, permanency prehearing conferences, termination of parental rights prehearing conferences, juvenile victim-offender dialogue, victim youth conferencing, victim-offender mediation, youth or community dialogue, panels, circles, and truancy mediation. The Office of Dispute Resolution shall be responsible for funding and management for such services provided by approved centers. All discussions taking place during such restorative justice practices, including plea negotiations, shall be confidential and privileged communications as provided in section 25-2914.01.

(2) For purposes of this section:

(a) Expedited family group conference means an expedited and limited-scope facilitated planning meeting which engages a child's or juvenile's parents, the child or juvenile when appropriate, other critical family members, services providers, and staff members from either the Department of Health and Human Services or the Office of Probation Administration to address immediate placement issues for the child or juvenile;

(b) Family group conference means a facilitated meeting involving a child's or juvenile's family, the child or juvenile when appropriate, available extended family members from across the United States, other significant and close persons to the family, service providers, and staff members from either the Department of Health and Human Services or the Office of Probation Administration to develop a family-centered plan for the best interests of the child and to address the essential issues of safety, permanency, and well-being of the child;

(c) Juvenile victim-offender dialogue means a court-connected process in which a facilitator meets with the juvenile offender and the victim in an effort to convene a dialogue in which the offender takes responsibility for his or her actions and the victim is able to address the offender and request an apology and restitution, with the goal of creating an agreed-upon written plan;

(d) Prehearing conference means a facilitated meeting prior to appearing in court and held to gain the cooperation of the parties, to offer services and treatment, and to develop a problem-solving atmosphere in the best interests of children involved in the juvenile court system. A prehearing conference may be scheduled at any time during the child welfare or juvenile court process, from initial removal through permanency, termination of parental rights, and juvenile delinquency court processes; and

(e) Victim youth conferencing means a process in which a restorative justice facilitator meets with the juvenile and the victim, when appropriate, in an effort to convene a dialogue in which the juvenile takes responsibility for his or her actions and the victim or victim surrogate is able to address the juvenile and create a reparation plan agreement, which may include apologies, restitution, community services, or other agreed-upon means of amends.

Source:Laws 2008, LB1014, § 38; R.S.1943, (2008), § 43-247.01; Laws 2014, LB464, § 10; Laws 2019, LB595, § 25.

43-247.04. Repealed. Laws 2024, LB1051, § 20.

43-248. Temporary custody of juvenile without warrant; when.

A peace officer may take a juvenile into temporary custody without a warrant or order of the court and proceed as provided in section 43-250 when:

(1) A juvenile has violated a state law or municipal ordinance and such juvenile was eleven years of age or older at the time of the violation, and the officer has reasonable grounds to believe such juvenile committed such violation and was eleven years of age or older at the time of the violation;

(2) The officer has reasonable grounds to believe that the juvenile has run away from his or her parent, guardian, or custodian;

(3) A probation officer has reasonable cause to believe that a juvenile is in violation of probation and that the juvenile will attempt to leave the jurisdiction or place lives or property in danger;

(4) The officer has reasonable grounds to believe the juvenile is truant from school;

(5) The officer has reasonable grounds to believe the juvenile is immune from prosecution for prostitution under subsection (5) of section 28-801;

(6) A juvenile is seriously endangered in his or her surroundings and immediate removal appears to be necessary for the juvenile's protection;

(7) A juvenile has committed an act or engaged in behavior described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and such juvenile was under eleven years of age at the time of such act or behavior, and the officer has reasonable cause to believe such juvenile committed such act or engaged in such behavior and was under eleven years of age at such time; or

(8) The officer believes the juvenile to be mentally ill and dangerous as defined in section 71-908 and that the harm described in that section is likely to occur before proceedings may be instituted before the juvenile court.

Source:Laws 1981, LB 346, § 4; Laws 1997, LB 622, § 64; Laws 2004, LB 1083, § 93; Laws 2010, LB800, § 14; Laws 2013, LB255, § 10; Laws 2016, LB894, § 3; Laws 2018, LB670, § 1; Laws 2024, LB1051, § 7.
Effective Date: July 19, 2024

Annotations

Although subsection (3) of this section 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, the parent retains a liberty interest in the continuous custody of his or her child. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

When a juvenile is taken into temporary custody pursuant to subsection (5) of this section, a peace officer may conduct a search incident to temporary detention. In re Interest of Jabreco G., 12 Neb. App. 667, 683 N.W.2d 386 (2004).

When a juvenile is taken into temporary custody pursuant to this section, the peace officer may conduct a search incident to temporary detention. In re Interest of Adrian B., 11 Neb. App. 656, 658 N.W.2d 722 (2003).

43-248.01. Juvenile in custody; right to call or consult an attorney.

All law enforcement personnel or other governmental officials having custody of any person under eighteen years of age shall inform the person in custody, using developmentally appropriate language and without unnecessary delay, of such person's right to call or consult an attorney who is retained by or appointed on behalf of such person or whom the person may desire to consult and, except when exigent circumstances exist, shall permit such person to call or consult such attorney without delay. An attorney shall be permitted to see and consult with the person in custody alone and in private at the place of custody.

Source:Laws 1993, LB 652, § 1; Laws 2016, LB894, § 4.

43-248.02. Juvenile offender civil citation pilot program; peace officer issue civil citation; contents; advisement; peace officer; duties; juvenile report to juvenile assessment center; failure to comply; effect.

A juvenile offender civil citation pilot program as provided in this section and section 43-248.03 may be undertaken by the peace officers and county and city attorneys of a county containing a city of the metropolitan class. The pilot program shall be according to the following procedures:

(1) A peace officer, upon making contact with a juvenile whom the peace officer has reasonable grounds to believe has committed a misdemeanor offense, other than an offense involving a firearm, sexual assault, or domestic violence, may issue the juvenile a civil citation;

(2) The civil citation shall include: The juvenile's name, address, school of attendance, and contact information; contact information for the juvenile's parents or guardian; a description of the misdemeanor offense believed to have been committed; the juvenile assessment center where the juvenile cited is to appear within seventy-two hours after the issuance of the civil citation; and a warning that failure to appear in accordance with the command of the civil citation or failure to provide the information necessary for the peace officer to complete the civil citation will result in the juvenile being taken into temporary custody as provided in sections 43-248 and 43-250;

(3) At the time of issuance of a civil citation by the peace officer, the peace officer shall advise the juvenile that the juvenile has the option to refuse the civil citation and be taken directly into temporary custody as provided in sections 43-248 and 43-250. The option to refuse the civil citation may be exercised at any time prior to compliance with any services required pursuant to subdivision (5) of this section;

(4) Upon issuing a civil citation, the peace officer shall provide or send a copy of the civil citation to the appropriate county attorney, the juvenile assessment center, and the parents or guardian of the juvenile;

(5) The juvenile shall report to the juvenile assessment center as instructed by the citation. The juvenile assessment center may require the juvenile to participate in community service or other available services appropriate to the needs of the juvenile identified by the juvenile assessment center which may include family counseling, urinalysis monitoring, or substance abuse and mental health treatment services; and

(6) If the juvenile fails to comply with any services required pursuant to subdivision (5) of this section or if the juvenile is issued a third or subsequent civil citation, a peace officer shall take the juvenile into temporary custody as provided in sections 43-248 and 43-250.

Source:Laws 2010, LB800, § 10.

43-248.03. Civil citation form.

To achieve uniformity, the Supreme Court shall prescribe the form of a civil citation which conforms to the requirements for a civil citation in section 43-248.02 and such other matter as the court deems appropriate. The civil citation shall not include a place for the cited juvenile's social security number.

Source:Laws 2010, LB800, § 11.

43-249. Temporary custody; not an arrest; exception.

No juvenile taken into temporary custody under section 43-248 shall be considered to have been arrested, except for the purpose of determining the validity of such custody under the Constitution of Nebraska or the United States.

Source:Laws 1981, LB 346, § 5; Laws 1982, LB 787, § 3.

43-250. Temporary custody; disposition; custody requirements.

(1) A peace officer who takes a juvenile into temporary custody under section 29-401 or subdivision (1), (2), (3), or (7) of section 43-248 shall immediately take reasonable measures to notify the juvenile's parent, guardian, custodian, or relative and shall proceed as follows:

(a) The peace officer may release a juvenile taken into temporary custody under section 29-401 or subdivision (1), (2), or (7) of section 43-248;

(b) The peace officer may require a juvenile taken into temporary custody under section 29-401 or subdivision (1) or (2) of section 43-248 to appear before the court of the county in which such juvenile was taken into custody at a time and place specified in the written notice prepared in triplicate by the peace officer or at the call of the court. The notice shall also contain a concise statement of the reasons such juvenile was taken into custody. The peace officer shall deliver one copy of the notice to such juvenile and require such juvenile or his or her parent, guardian, other custodian, or relative, or both, to sign a written promise that such signer will appear at the time and place designated in the notice. Upon the execution of the promise to appear, the peace officer shall immediately release such juvenile. The peace officer shall, as soon as practicable, file one copy of the notice with the county attorney or city attorney and, when required by the court, also file a copy of the notice with the court or the officer appointed by the court for such purpose; or

(c) The peace officer may retain temporary custody of a juvenile taken into temporary custody under section 29-401 or subdivision (1), (2), or (3) of section 43-248 and deliver the juvenile, if necessary, to the probation officer and communicate all relevant available information regarding such juvenile to the probation officer. The probation officer shall determine the need for detention of the juvenile as provided in section 43-260.01. Upon determining that the juvenile should be placed in detention or an alternative to detention and securing placement in such setting by the probation officer, the peace officer shall implement the probation officer's decision to release or to detain and place the juvenile. When secure detention of a juvenile is necessary, such detention shall occur within a juvenile detention facility except:

(i) When a juvenile described in subdivision (1) or (2) of section 43-247, except for a status offender, is taken into temporary custody within a metropolitan statistical area and where no juvenile detention facility is reasonably available, the juvenile may be delivered, for temporary custody not to exceed six hours, to a secure area of a jail or other facility intended or used for the detention of adults solely for the purposes of identifying the juvenile and ascertaining his or her health and well-being and for safekeeping while awaiting transport to an appropriate juvenile placement or release to a responsible party;

(ii) When a juvenile described in subdivision (1) or (2) of section 43-247, except for a status offender, is taken into temporary custody outside of a metropolitan statistical area and where no juvenile detention facility is reasonably available, the juvenile may be delivered, for temporary custody not to exceed twenty-four hours excluding nonjudicial days and while awaiting an initial court appearance, to a secure area of a jail or other facility intended or used for the detention of adults solely for the purposes of identifying the juvenile and ascertaining his or her health and well-being and for safekeeping while awaiting transport to an appropriate juvenile placement or release to a responsible party;

(iii) Whenever a juvenile is held in a secure area of any jail or other facility intended or used for the detention of adults, there shall be no verbal, visual, or physical contact between the juvenile and any incarcerated adult and there shall be adequate staff to supervise and monitor the juvenile's activities at all times. This subdivision shall not apply to a juvenile charged with a felony as an adult in county or district court if he or she is sixteen years of age or older;

(iv) If a juvenile is under sixteen years of age or is a juvenile as described in subdivision (3) of section 43-247, he or she shall not be placed within a secure area of a jail or other facility intended or used for the detention of adults;

(v) If, within the time limits specified in subdivision (1)(c)(i) or (1)(c)(ii) of this section, a felony charge is filed against the juvenile as an adult in county or district court, he or she may be securely held in a jail or other facility intended or used for the detention of adults beyond the specified time limits;

(vi) A status offender or nonoffender taken into temporary custody shall not be held in a secure area of a jail or other facility intended or used for the detention of adults; and

(vii) A juvenile described in subdivision (1) or (2) of section 43-247, except for a status offender, may be held in a secure area of a jail or other facility intended or used for the detention of adults for up to six hours before and six hours after any court appearance.

(2) A juvenile taken into custody pursuant to a legal warrant of arrest shall be delivered to a probation officer who shall determine the need for detention of the juvenile as provided in section 43-260.01. If detention is not required, the juvenile may be released without bond if such release is in the best interests of the juvenile, the safety of the community is not at risk, and the court that issued the warrant is notified that the juvenile had been taken into custody and was released.

(3) In determining the appropriate temporary placement or alternative to detention of a juvenile under this section, the peace officer shall select the placement or alternative which is least restrictive of the juvenile's freedom so long as such placement or alternative is compatible with the best interests of the juvenile and the safety of the community. Any alternative to detention shall cause the least restriction of the juvenile's freedom of movement consistent with the best interests of the juvenile and the safety of the community.

(4) When a juvenile is taken into temporary custody pursuant to subdivision (4) of section 43-248, the peace officer shall deliver the juvenile to the enrolled school of such juvenile.

(5) When a juvenile is taken into temporary custody pursuant to subdivision (5), (6), or (7) of section 43-248, and not released under subdivision (1)(a) of this section, the peace officer shall deliver the custody of such juvenile to the Department of Health and Human Services which shall make a temporary placement of the juvenile in the least restrictive environment consistent with the best interests of the juvenile as determined by the department. The department shall supervise such placement and, if necessary, consent to any necessary emergency medical, psychological, or psychiatric treatment for such juvenile. The department shall have no other authority with regard to such temporary custody until or unless there is an order by the court placing the juvenile in the custody of the department. If the peace officer delivers temporary custody of the juvenile pursuant to this subsection, the peace officer shall make a full written report to the county attorney within twenty-four hours of taking such juvenile into temporary custody. If a court order of temporary custody is not issued within forty-eight hours of taking the juvenile into custody, the temporary custody by the department shall terminate and the juvenile shall be returned to the custody of his or her parent, guardian, custodian, or relative.

(6) If the peace officer takes the juvenile into temporary custody pursuant to subdivision (8) of section 43-248, the peace officer may place the juvenile at a mental health facility for evaluation and emergency treatment or may deliver the juvenile to the Department of Health and Human Services as provided in subsection (5) of this section. At the time of the admission or turning the juvenile over to the department, the peace officer responsible for taking the juvenile into custody pursuant to subdivision (8) of section 43-248 shall execute a written certificate as prescribed by the department which will indicate that the peace officer believes the juvenile to be mentally ill and dangerous, a summary of the subject's behavior supporting such allegations, and that the harm described in section 71-908 is likely to occur before proceedings before a juvenile court may be invoked to obtain custody of the juvenile. A copy of the certificate shall be forwarded to the county attorney. The peace officer shall notify the juvenile's parents, guardian, custodian, or relative of the juvenile's placement.

Source:Laws 1981, LB 346, § 6; Laws 1982, LB 787, § 4; Laws 1985, LB 447, § 14; Laws 1988, LB 790, § 24; Laws 1996, LB 1044, § 128; Laws 1997, LB 622, § 65; Laws 1998, LB 1073, § 13; Laws 2000, LB 1167, § 12; Laws 2001, LB 451, § 5; Laws 2003, LB 43, § 12; Laws 2004, LB 1083, § 94; Laws 2009, LB63, § 29; Laws 2010, LB771, § 18; Laws 2010, LB800, § 15; Laws 2013, LB255, § 11; Laws 2015, LB294, § 15; Laws 2016, LB894, § 5; Laws 2018, LB670, § 2; Laws 2024, LB1051, § 8.
Effective Date: July 19, 2024

Annotations

The State's failure to comply with the statutory requirements relating to the entry of an ex parte temporary detention order does not deprive the juvenile court of jurisdiction. In re Interest of Xandria P., 311 Neb. 591, 973 N.W.2d 692 (2022).

The intent of this section was and is to ensure that a juvenile's due process rights are not violated by providing that parents will be notified after the juvenile is taken into custody. The potential injury contemplated by this section is the violation of the juvenile's due process right to have his or her parents notified prior to a dispositional proceeding. It is not the intent of this section to protect juveniles from harming themselves after being released by law enforcement, nor is there any indication that the Legislature intended to create a civil remedy for its violation. Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001).

The information upon which the State seeks an ex parte temporary detention order under the provisions of this section shall be contained in the affidavit of one who has knowledge of the relevant facts; such affidavit shall be presented to the juvenile court and made a part of the record of the proceedings, and the affected juvenile's parent shall be given prompt notice of the order. The State's failure to comply with the statutory requirements relating to the entry of an ex parte temporary detention order under the provisions of this section does not deprive the juvenile court of jurisdiction. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991).

Failure to immediately take reasonable measures, as provided in this section, to notify a parent that temporary custody has been taken of a juvenile pursuant to section 43-248 does not deprive the juvenile court of jurisdiction. In re Interest of S.S.L., 219 Neb. 911, 367 N.W.2d 710 (1985).

The burden is upon the State to allege and prove in a detention hearing that the juvenile court should not place children with their other natural parent after the expiration of the first 48 hours of emergency detention under subsection (4) of this section during a period of temporary detention pending adjudication spawned by allegations under subsection (3)(a) of section 43-247 against their custodial parent. In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).

43-251. Preadjudication placement or detention; mental health placement; prohibitions.

(1) When a juvenile is taken into custody pursuant to sections 43-248 and 43-250, the court or magistrate may take any action for preadjudication placement or detention prescribed in the Nebraska Juvenile Code.

(2) Any juvenile taken into custody under the Nebraska Juvenile Code for allegedly being mentally ill and dangerous shall not be placed in a staff secure juvenile facility, jail, or detention facility designed for juveniles who are accused of criminal acts or for juveniles as described in subdivision (1), (2), or (4) of section 43-247 either as a temporary placement by a peace officer, as a temporary placement by a court, or as an adjudication placement by the court.

Source:Laws 1981, LB 346, § 7; Laws 1985, LB 447, § 15; Laws 1997, LB 622, § 66; Laws 1998, LB 1073, § 14; Laws 2013, LB561, § 9.

43-251.01. Juveniles; placements and commitments; restrictions.

All placements and commitments of juveniles for evaluations or as temporary or final dispositions are subject to the following:

(1) No juvenile shall be confined in an adult correctional facility as a disposition of the court;

(2) A juvenile who is found to be a juvenile as described in subdivision (3) of section 43-247 shall not be placed in an adult correctional facility, the secure youth confinement facility operated by the Department of Correctional Services, or a youth rehabilitation and treatment center or committed to the Office of Juvenile Services;

(3) A juvenile who is found to be a juvenile as described in subdivision (1), (2), or (4) of section 43-247 shall not be assigned or transferred to an adult correctional facility or the secure youth confinement facility operated by the Department of Correctional Services;

(4) A juvenile under the age of fourteen years shall not be placed with or committed to a youth rehabilitation and treatment center;

(5)(a) A juvenile shall not be detained unless the physical safety of persons in the community would be seriously threatened or detention is necessary to secure the presence of the juvenile at the next hearing, as evidenced by a demonstrable record of willful failure to appear at a scheduled court hearing within the last twelve months;

(b) A child twelve years of age or younger shall not be placed in detention under any circumstances; and

(i) To allow a parent or guardian to avoid his or her legal responsibility;

(ii) To punish, treat, or rehabilitate such juvenile;

(iii) To permit more convenient administrative access to such juvenile;

(iv) To facilitate further interrogation or investigation; or

(v) Due to a lack of more appropriate facilities except in case of an emergency as provided in section 43-430;

(6) A juvenile alleged to be a juvenile as described in subdivision (3) of section 43-247 shall not be placed in a juvenile detention facility, including a wing labeled as staff secure at such facility, unless the designated staff secure portion of the facility fully complies with subdivision (5) of section 83-4,125 and the ingress and egress to the facility are restricted solely through staff supervision; and

(7) A juvenile alleged to be a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 shall not be placed out of his or her home as a dispositional order of the court unless:

(a) All available community-based resources have been exhausted to assist the juvenile and his or her family; and

(b) Maintaining the juvenile in the home presents a significant risk of harm to the juvenile or community.

Source:Laws 1998, LB 1073, § 25; Laws 2012, LB972, § 1; Laws 2013, LB561, § 10; Laws 2015, LB482, § 1; Laws 2016, LB894, § 6; Laws 2018, LB670, § 3; Laws 2020, LB1140, § 3; Laws 2024, LB1051, § 9.
Effective Date: July 19, 2024

Annotations

A youth was at serious risk of harm and detriment due to his refusal to attend school and develop basic life skills while living in the family home. In re Interest of Dana H., 299 Neb. 197, 907 N.W.2d 730 (2018).

"Harm," as defined by this section, encompasses not only physical injury and hurt, but also any material or tangible detriment. In re Interest of Dana H., 299 Neb. 197, 907 N.W.2d 730 (2018).

This section's exhaustion requirement demands evidence establishing that no other community-based resources have a reasonable possibility for success or that all options for community-based services have been thoroughly considered and none are feasible. In re Interest of Dana H., 299 Neb. 197, 907 N.W.2d 730 (2018).

Neither subsection (2) of this section nor section 43-278 prohibits a juvenile court from placing a juvenile at a youth rehabilitation and treatment center when the court has adjudicated a juvenile under section 43-247(2) and (3). In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

The exhaustion requirement of subdivision (7)(a) of this section demands evidence establishing that no other community-based resources have a reasonable possibility for success or that all options for community-based services have been thoroughly considered and none are feasible. In re Interest of Robert W., 27 Neb. App. 11, 925 N.W.2d 714 (2019).

43-251.02. Reference to clinically credentialed community-based provider.

A peace officer, upon making contact with a child who is in need of assistance, may refer the child and child's parent or parents or guardian to a clinically credentialed community-based provider for immediate crisis intervention, de-escalation, and respite care services.

Source:Laws 2015, LB482, § 2; Laws 2018, LB670, § 4.

43-251.03. Limitation on use of restraints; written findings.

(1) Restraints shall not be used on a juvenile during a juvenile court proceeding and shall be removed prior to the juvenile's appearance before the juvenile court, unless the juvenile court makes a finding of probable cause that:

(a) The use of restraints is necessary:

(i) To prevent physical harm to the juvenile or another person;

(ii) Because the juvenile:

(A) Has a history of disruptive courtroom behavior that has placed others in potentially harmful situations; or

(B) Presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior; or

(iii) Because the juvenile presents a substantial risk of flight from the courtroom; and

(b) There is no less restrictive alternative to restraints that will prevent flight or physical harm to the juvenile or another person, including, but not limited to, the presence of court personnel, law enforcement officers, or bailiffs.

(2) The court shall provide the juvenile's attorney an opportunity to be heard before the court orders the use of restraints. If restraints are ordered, the court shall make written findings of fact in support of the order.

(3) For purposes of this section, restraints includes, but is not limited to, handcuffs, chains, irons, straitjackets, and electronic restraint devices.

Source:Laws 2015, LB482, § 3.

43-252. Fingerprints; when authorized; disposition.

(1) The fingerprints of any juvenile less than fourteen years of age, who has been taken into custody in the investigation of a suspected unlawful act, shall not be taken unless the consent of any district, county, associate county, associate separate juvenile court, or separate juvenile court judge has first been obtained.

(2) The fingerprints of any juvenile alleged or found to be a juvenile as described in subdivision (3)(b) of section 43-247 shall not be taken.

(3) If the judge permits the fingerprinting, the fingerprints must be filed by law enforcement officers in files kept separate from those of persons of the age of majority.

(4) The fingerprints of any juvenile shall not be sent to a state or federal depository by a law enforcement agency of this state unless: (a) The juvenile has been convicted of or adjudged to have committed a felony; (b) the juvenile has unlawfully terminated his or her commitment to a youth rehabilitation and treatment center; or (c) the juvenile is a runaway and a fingerprint check is needed for identification purposes to return the juvenile to his or her parent.

Source:Laws 1981, LB 346, § 8; Laws 1982, LB 787, § 5; Laws 1994, LB 988, § 19; Laws 2015, LB482, § 4.

43-253. Temporary custody; investigation; release; when.

(1) Upon delivery to the probation officer of a juvenile who has been taken into temporary custody under section 29-401, 43-248, or 43-250, the probation officer shall immediately investigate the situation of the juvenile and the nature and circumstances of the events surrounding his or her being taken into custody. Such investigation may be by informal means when appropriate.

(2) The probation officer's decision to release the juvenile from custody or place the juvenile in detention or an alternative to detention shall be based upon the results of the standardized juvenile detention screening instrument described in section 43-260.01.

(3) No juvenile who has been taken into temporary custody under subdivision (1)(c) of section 43-250 or subsection (6) of section 43-286.01 or pursuant to an alleged violation of an order for conditional release shall be detained in any detention facility or be subject to an alternative to detention infringing upon the juvenile's liberty interest for longer than twenty-four hours, excluding nonjudicial days, after having been taken into custody unless such juvenile has appeared personally before a court of competent jurisdiction for a hearing to determine if continued detention, services, or supervision is necessary. The juvenile shall be represented by counsel at the hearing. Whether such counsel shall be provided at the cost of the county shall be determined as provided in subsection (1) of section 43-272. If continued secure detention is ordered, such detention shall be in a juvenile detention facility, except that a juvenile charged with a felony as an adult in county or district court may be held in an adult jail as set forth in subdivision (1)(c)(v) of section 43-250. A juvenile placed in an alternative to detention, but not in detention, may waive this hearing through counsel.

(4) When the probation officer deems it to be in the best interests of the juvenile, the probation officer shall immediately release such juvenile to the custody of his or her parent. If the juvenile has both a custodial and a noncustodial parent and the probation officer deems that release of the juvenile to the custodial parent is not in the best interests of the juvenile, the probation officer shall, if it is deemed to be in the best interests of the juvenile, attempt to contact the noncustodial parent, if any, of the juvenile and to release the juvenile to such noncustodial parent. If such release is not possible or not deemed to be in the best interests of the juvenile, the probation officer may release the juvenile to the custody of a legal guardian, a responsible relative, or another responsible person.

(5) The court may admit such juvenile to bail by bond in such amount and on such conditions and security as the court, in its sole discretion, shall determine, or the court may proceed as provided in section 43-254. In no case shall the court or probation officer release such juvenile if it appears that:

(a) The physical safety of persons in the community would be seriously threatened; or

(b) Detention is necessary to secure the presence of the juvenile at the next hearing, as evidenced by a demonstrable record of willful failure to appear at a scheduled court hearing within the last twelve months.

Source:Laws 1981, LB 346, § 9; Laws 1982, LB 787, § 6; Laws 1994, LB 451, § 2; Laws 1998, LB 1073, § 15; Laws 2000, LB 1167, § 15; Laws 2001, LB 451, § 6; Laws 2010, LB800, § 16; Laws 2016, LB894, § 7; Laws 2017, LB8, § 1; Laws 2018, LB670, § 5; Laws 2024, LB1051, § 10.
Effective Date: July 19, 2024

Cross References

Clerk magistrate, authority to determine temporary custody of juvenile, see section 24-519.

43-254. Placement or detention pending adjudication; restrictions; assessment of costs.

(1) Pending the adjudication of any case, and subject to subdivision (5) of section 43-251.01, if it appears that the need for placement or further detention exists, the juvenile may be:

(a) Placed or detained a reasonable period of time on order of the court in the temporary custody of either the person having charge of the juvenile or some other suitable person;

(b) Kept in some suitable place provided by the city or county authorities;

(d) Placed in a state institution, except any adult correctional facility, when proper facilities are available and the only local facility is a city or county jail, at the expense of the committing county on a per diem basis as determined from time to time by the head of the particular institution;

(e) Placed in the temporary care and custody of the Department of Health and Human Services when it does not appear that there is any need for secure detention, except that no juvenile alleged to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 shall be placed in the care and custody or under the supervision of the department; or

(f) Offered supervision options as determined pursuant to section 43-260.01, through the Office of Probation Administration as ordered by the court and agreed to in writing by the parties, if the juvenile is alleged to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and it does not appear that there is any need for secure detention.

(2) The court may assess the cost of such placement or detention in whole or in part to the parent of the juvenile as provided in section 43-290.

(3) If a juvenile has been removed from his or her parent, guardian, or custodian pursuant to subdivision (6) of section 43-248, the court may enter an order continuing detention or placement upon a written determination that continuation of the juvenile in his or her home would be contrary to the health, safety, or welfare of such juvenile and that reasonable efforts were made to preserve and reunify the family if required under section 43-283.01.

Source:Laws 1981, LB 346, § 10; Laws 1985, LB 447, § 16; Laws 1987, LB 635, § 1; Laws 1987, LB 638, § 2; Laws 1996, LB 1044, § 129; Laws 1998, LB 1041, § 23; Laws 2000, LB 1167, § 16; Laws 2010, LB800, § 17; Laws 2013, LB561, § 11; Laws 2017, LB289, § 16; Laws 2024, LB1051, § 11.
Effective Date: July 19, 2024

Annotations

1. Detention

2. Burden of proof

3. Reasonable efforts

1. Detention

A detention hearing is a parent's opportunity to be heard on the need for the removal and the satisfaction of the State's obligations under section 43-283.01, and it is not optional when a child is detained for any significant period of time. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

A temporary detention order, entered after a hearing pursuant to section 43-247(3)(a), is a final, appealable order. In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).

Although an ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time is not final, an order under this section and subsection (3)(a) of section 43-247 after a hearing which continues to keep a juvenile's custody from the parent pending an adjudication hearing is final and thus appealable. In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).

State did not meet statutory requirements to justify child's continued detention pending adjudication where there was no evidence showing that it would be contrary to the juvenile's welfare to remain in her home pending adjudication and no evidence regarding any efforts made by the State to prevent the need to remove the child. In re Interest of Cherita W., 4 Neb. App. 287, 541 N.W.2d 677 (1996).

2. Burden of proof

Continued detention pending adjudication is not permitted under the Nebraska Juvenile Code unless the State can establish by a preponderance of the evidence at an adversarial hearing that such detention is necessary for the welfare of the juvenile. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).

To sustain the continued temporary custody of a child, the State must prove the requirements of this section by a preponderance of the evidence. In re Interest of Borius H. et al., 251 Neb. 397, 558 N.W.2d 31 (1997).

The State must prove by a preponderance of the evidence that the custody of an alleged dependent or neglected juvenile should be in the Department of Social Services pending adjudication. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991).

3. Reasonable efforts

The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to this section, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of section 43-292. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

Provision in this section which requires the State to show that reasonable efforts have been made to prevent the need for a juvenile's removal applies only when the juvenile is taken into temporary custody without a court order under the authority of section 43-248(3). Thus, where a juvenile is taken into custody pursuant to a juvenile court order, this section does not apply. A detention order issued under section 43-247(3)(a) and this section after a hearing which continues to withhold the custody of a juvenile from the parent pending an adjudication hearing to determine whether the juvenile is neglected is a final order and thus appealable. Thus, where an appeal from such an order has been perfected, a trial court is without jurisdiction to terminate parental rights until resolution of the parent's appeal from the original detention order regarding that child. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).

43-254.01. Temporary mental health placement; evaluation; procedure.

(1) Any time a juvenile is temporarily placed at a mental health facility pursuant to subsection (6) of section 43-250 or by a court as a juvenile who is mentally ill and dangerous, a mental health professional as defined in section 71-906 shall evaluate the mental condition of the juvenile as soon as reasonably possible but not later than thirty-six hours after the juvenile's admission, unless the juvenile was evaluated by a mental health professional immediately prior to the juvenile being placed in temporary custody and the temporary custody is based upon the conclusions of that evaluation. The mental health professional who performed the evaluation prior to the temporary custody or immediately after the temporary custody shall, without delay, convey the results of his or her evaluation to the county attorney.

(2) If it is the judgment of the mental health professional that the juvenile is not mentally ill and dangerous or that the harm described in section 71-908 is not likely to occur before the matter may be heard by a juvenile court, the mental health professional shall immediately notify the county attorney of that conclusion and the county attorney shall either proceed to hearing before the court within twenty-four hours or order the immediate release of the juvenile from temporary custody. Such release shall not prevent the county attorney from proceeding on the petition if he or she so chooses.

(3) A juvenile taken into temporary protective custody under subsection (6) of section 43-250 shall have the opportunity to proceed to adjudication hearing within seven days unless the matter is continued. Continuances shall be liberally granted at the request of the juvenile, his or her guardian ad litem, attorney, parents, or guardian. Continuances may be granted to permit the juvenile an opportunity to obtain voluntary treatment.

Source:Laws 1997, LB 622, § 67; Laws 2004, LB 1083, § 95; Laws 2010, LB800, § 18; Laws 2024, LB1051, § 12.
Effective Date: July 19, 2024

43-254.02. Temporary detention rules and regulations; Nebraska Commission on Law Enforcement and Criminal Justice; duties.

The Nebraska Commission on Law Enforcement and Criminal Justice shall adopt, promulgate, and implement rules and regulations to harmonize state and federal law on the temporary detention of juveniles.

Source:Laws 1998, LB 1073, § 18.

43-255. Detention or placement; release required; exceptions.

Whenever a juvenile is detained or placed in an alternative to detention infringing upon the child's liberty interest under section 43-250 or 43-253, the juvenile shall be released unconditionally within forty-eight hours after the detention or placement order or the setting of bond, excluding nonjudicial days, unless within such period of time (1) a motion has been filed alleging that such juvenile has violated an order of the juvenile court, (2) a juvenile court petition has been filed pursuant to section 43-274, or (3) a criminal complaint has been filed in a court of competent jurisdiction.

Source:Laws 1981, LB 346, § 11; Laws 1982, LB 787, § 7; Laws 1987, LB 635, § 2; Laws 1998, LB 1073, § 16; Laws 2014, LB464, § 12; Laws 2016, LB894, § 8.

43-256. Continued placement, detention, or alternative to detention; probable cause hearing; release requirements; exceptions.

(1) When the court enters an order continuing placement, detention, or an alternative to detention infringing upon the juvenile's liberty interest pursuant to section 43-253, upon request of the juvenile, or his or her parent, guardian, or attorney, the court shall hold a hearing within forty-eight hours. At such hearing the state shall have the burden of proof to show probable cause that such juvenile is within the jurisdiction of the court. Strict rules of evidence shall not apply at the probable cause hearing. The juvenile shall be released if probable cause is not shown. At the option of the court, it may hold the adjudication hearing provided in section 43-279 as soon as possible instead of the probable cause hearing if held within a reasonable period of time.

(2) This section and section 43-255 shall not apply to a juvenile (a) who has escaped from a commitment or (b) who has been taken into custody for his or her own protection as provided in subdivision (6) of section 43-248 in which case the juvenile shall be held on order of the court with jurisdiction for a reasonable period of time.

Source:Laws 1981, LB 346, § 12; Laws 1982, LB 787, § 8; Laws 1998, LB 1073, § 17; Laws 2006, LB 1113, § 38; Laws 2010, LB800, § 19; Laws 2016, LB894, § 9; Laws 2024, LB1051, § 13.
Effective Date: July 19, 2024

43-257. Unlawful detention or placement; penalty.

Any person who knowingly holds a juvenile in detention or placement in violation of any of the provisions of section 43-255 or 43-256 shall be guilty of a Class III misdemeanor.

Source:Laws 1981, LB 346, § 13.

43-258. Preadjudication physical and mental evaluation; placement; restrictions; reports; costs.

(1) Pending the adjudication of any case under the Nebraska Juvenile Code, the court may order the juvenile examined by a physician, surgeon, psychiatrist, duly authorized community mental health service program, or psychologist to aid the court in determining (a) a material allegation in the petition relating to the juvenile's physical or mental condition, (b) the juvenile's competence to participate in the proceedings, (c) the juvenile's responsibility for his or her acts, or (d) whether or not to provide emergency medical treatment.

(2)(a) Pending the adjudication of any case under the Nebraska Juvenile Code and after a showing of probable cause that the juvenile is within the court's jurisdiction, for the purposes of subsection (1) of this section, the court may order such juvenile to be placed with the Department of Health and Human Services for evaluation, except that no juvenile alleged to be a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 shall be placed with the department. If a juvenile is placed with the department under this subdivision, the department shall make arrangements for an appropriate evaluation. The department shall determine whether the evaluation will be made on a residential or nonresidential basis. Placement with the department for the purposes of this section shall be for a period not to exceed thirty days. If necessary to complete the evaluation, the court may order an extension not to exceed an additional thirty days. Any temporary placement of a juvenile made under this section shall be in the least restrictive environment consistent with the best interests of the juvenile and the safety of the community.

(b) Pending the adjudication of any case in which a juvenile is alleged to be a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and after a showing of probable cause that the juvenile is within the court's jurisdiction, for the purposes of subsection (1) of this section, the court may order an evaluation to be arranged by the Office of Probation Administration. Any temporary placement of a juvenile made under this section shall be in the least restrictive environment consistent with the best interests of the juvenile and the safety of the community.

(3) Upon completion of the evaluation, the juvenile shall be returned to the court together with a written or electronic report of the results of the evaluation. Such report shall include an assessment of the basic needs of the juvenile and recommendations for continuous and long-term care and shall be made to effectuate the purposes in subdivision (1) of section 43-246. The juvenile shall appear before the court for a hearing on the report of the evaluation results within ten days after the court receives the evaluation.

(4) During any period of detention or evaluation prior to adjudication, costs incurred on behalf of a juvenile shall be paid as provided in section 43-290.01.

(5) The court shall provide copies of the evaluation report and any evaluations of the juvenile to the juvenile's attorney and the county attorney or city attorney prior to any hearing in which the report or evaluation will be relied upon.

Source:Laws 1981, LB 346, § 14; Laws 1982, LB 787, § 9; Laws 1985, LB 447, § 17; Laws 1987, LB 638, § 3; Laws 1994, LB 988, § 20; Laws 1996, LB 1155, § 9; Laws 1998, LB 1073, § 19; Laws 2010, LB800, § 20; Laws 2011, LB669, § 26; Laws 2013, LB561, § 12; Laws 2014, LB464, § 13; Laws 2024, LB1051, § 14.
Effective Date: July 19, 2024

Annotations

Juveniles who face adjudication for a status offense must be competent to participate in the proceedings. In re Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (2021).

The procedure for protecting a juvenile's right to be competent to participate in juvenile proceedings is left to the sound discretion of the juvenile court, based on the best interests of the juvenile. In re Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (2021).

This section does not apply to requests for mental and physical examinations after a juvenile has been adjudicated under subsection (3)(a) of section 43-247. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).

Pursuant to subsection (4) of this section, the Department of Social Services is not required to pay costs for preadjudication evaluation that is conducted at a private facility. In re Interest of Todd T., 249 Neb. 738, 545 N.W.2d 711 (1996).

43-259. Evaluation; motion for release of juvenile in custody.

The juvenile, his or her attorney, parent, guardian, or custodian may file a motion to release the juvenile from custody and request a hearing after the initial commitment order for evaluation provided in section 43-258 is entered. Pending the hearing on such application, the juvenile shall remain in custody in such manner as the court determines to be in the best interests of the juvenile, taking into account the results of a standardized juvenile detention screening instrument as provided in section 43-260.01.

Source:Laws 1981, LB 346, § 15; Laws 2000, LB 1167, § 17.

43-260. Standardized juvenile detention screening instrument.

The Office of Probation Administration shall prepare and distribute to probation officers a standardized juvenile detention screening instrument. The types of risk factors to be included as well as the format of this standardized juvenile detention screening instrument shall be determined by the office. The standardized juvenile detention screening instrument shall be used as an assessment tool statewide by probation officers under section 43-260.01 in order to determine if detention of the juvenile is necessary and, if so, whether detention or an alternative to detention is indicated. Probation officers trained to administer the juvenile detention screening instrument shall act as juvenile intake probation officers. Only duly trained probation officers shall be authorized to administer the juvenile detention screening instrument.

Source:Laws 2000, LB 1167, § 13; Laws 2001, LB 451, § 7; Laws 2004, LB 940, § 1; Laws 2016, LB894, § 10.

43-260.01. Detention; factors.

The need for preadjudication placement, services, or supervision and the need for detention of a juvenile and whether detention or an alternative to detention is indicated shall be subject to subdivision (5) of section 43-251.01 and shall be determined as follows:

(1) The standardized juvenile detention screening instrument shall be used to evaluate the juvenile;

(2) If the results indicate that detention is not required, the juvenile shall be released without restriction or released to an alternative to detention; and

(3) If the results indicate that detention is required, detention shall be pursued.

Source:Laws 2000, LB 1167, § 14; Laws 2013, LB561, § 13; Laws 2016, LB894, § 11; Laws 2018, LB670, § 6.

43-260.02. Juvenile pretrial diversion program; authorized.

A county attorney may establish a juvenile pretrial diversion program with the concurrence of the county board. If the county is part of a multicounty juvenile services plan under the Nebraska County Juvenile Services Plan Act, the county attorney may establish a juvenile pretrial diversion program in conjunction with other county attorneys from counties that are a part of such multicounty plan. A city attorney may establish a juvenile pretrial diversion program with the concurrence of the governing body of the city. Such programs shall meet the requirements of sections 43-260.02 to 43-260.07.

Source:Laws 2003, LB 43, § 1.

Cross References

Nebraska County Juvenile Services Plan Act, see section 43-3501.

43-260.03. Juvenile pretrial diversion program; goals.

The goals of a juvenile pretrial diversion program are:

(1) To provide eligible juvenile offenders with an alternative program in lieu of adjudication through the juvenile court;

(2) To reduce recidivism among diverted juvenile offenders;

(3) To reduce the costs and caseload burdens on the juvenile justice system and the criminal justice system; and

(4) To promote the collection of restitution to the victim of the juvenile offender's crime.

Source:Laws 2003, LB 43, § 2.

43-260.04. Juvenile pretrial diversion program; requirements.

A juvenile pretrial diversion program shall:

(1) Be an option available for the county attorney or city attorney based upon his or her determination under this subdivision. The county attorney or city attorney may use the following information:

(a) The juvenile's age;

(b) The nature of the offense and role of the juvenile in the offense;

(d) The dangerousness or threat posed by the juvenile to persons or property; or

(e) The recommendations of the referring agency, victim, and advocates for the juvenile;

(2) Permit participation by a juvenile only on a voluntary basis and shall include a juvenile diversion agreement described in section 43-260.06;

(3) Allow the juvenile to consult with counsel prior to a decision to participate in the program;

(4) Be offered to the juvenile when practicable prior to the filing of a juvenile petition or a criminal charge but after the arrest of the juvenile or issuance of a citation to the juvenile if after the arrest or citation a decision has been made by the county attorney or city attorney that the offense will support the filing of a juvenile petition or criminal charges;

(5) Provide screening services for use in creating a diversion plan utilizing appropriate services for the juvenile;

(6) Result in dismissal of the juvenile petition or criminal charges if the juvenile successfully completes the program;

(7) Be designed and operated to further the goals stated in section 43-260.03 and comply with sections 43-260.04 to 43-260.07;

(8) Require information received by the program regarding the juvenile to remain confidential unless a release of information is signed upon admission to the program or is otherwise authorized by law; and

(9)(a) Respond to a public inquiry in the same manner as if there were no information or records concerning participation in the diversion program. Information or records pertaining to participation in the diversion program shall not be disseminated to any person other than:

(i) A criminal justice agency as defined in section 29-3509;

(ii) The individual who is the subject of the record or any persons authorized by such individual; or

(iii) Other persons or agencies authorized by law.

(b) An individual, a person, or an agency requesting information subject to subdivision (9)(a) of this section shall provide the diversion program with satisfactory verification of his, her, or its identity.

Source:Laws 2003, LB 43, § 3; Laws 2013, LB561, § 14; Laws 2019, LB354, § 1.

43-260.05. Juvenile pretrial diversion program; optional services.

A juvenile pretrial diversion program may:

(1) Provide screening services to the court and county attorney or city attorney to help identify likely candidates for the program;

(2) Establish goals for diverted juvenile offenders and monitor performance of the goals;

(3) Coordinate chemical dependency assessments of diverted juvenile offenders when indicated, make appropriate referrals for treatment, and monitor treatment and aftercare;

(4) Coordinate individual, group, and family counseling services;

(5) Oversee the payment of victim restitution by diverted juvenile offenders;

(6) Assist diverted juvenile offenders in identifying and contacting appropriate community resources;

(7) Coordinate educational services to diverted juvenile offenders to enable them to earn a high school diploma or general education development diploma; and

(8) Provide accurate information on how diverted juvenile offenders perform in the program to the juvenile courts, county attorneys, city attorneys, defense attorneys, and probation officers.

Source:Laws 2003, LB 43, § 4; Laws 2013, LB561, § 15.

43-260.06. Juvenile diversion agreement; contents.

A juvenile diversion agreement shall include, but not be limited to, one or more of the following:

(1) A letter of apology;

(2) Community service, not to be performed during school hours if the juvenile offender is attending school;

(3) Restitution;

(4) Attendance at educational or informational sessions at a community agency;

(5) Requirements to remain during specified hours at home, school, and work and restrictions on leaving or entering specified geographical areas; and

(6) Participation in an appropriate restorative justice practice or service.

Source:Laws 2003, LB 43, § 5; Laws 2019, LB595, § 27.

43-260.07. Juvenile pretrial diversion program; data; duties.

(1) On January 30 of each year, every county attorney or city attorney of a county or city which has a juvenile pretrial diversion program shall report to the Director of Juvenile Diversion Programs the information pertaining to the program required by rules and regulations adopted and promulgated by the Nebraska Commission on Law Enforcement and Criminal Justice.

(2) Juvenile pretrial diversion program data shall be maintained and compiled by the Director of Juvenile Diversion Programs.

Source:Laws 2003, LB 43, § 6; Laws 2013, LB561, § 16.

43-261. Juvenile court petition; contents; filing.

(1)(a) A juvenile court petition and all subsequent proceedings shall be entitled In the Interest of ........................., a Juvenile, inserting the juvenile's name in the blank. The written petition shall be signed by the county attorney, specify which subdivision of section 43-247 is alleged and set forth the facts, state the juvenile's month and year of birth, and request the juvenile court to determine whether support will be ordered pursuant to section 43-290. An allegation under subdivision (1), (2), or (4) of section 43-247 is to be made with the same specificity as a criminal complaint. It is sufficient if the petition is based upon information and belief.

(b) A juvenile court petition is filed with the clerk of the court having jurisdiction over the matter. If such court is a separate juvenile court, the petition is filed with the clerk of the district court. If such court is a county court sitting as a juvenile court, the petition is filed with the clerk of the county court.

(2) In all cases involving violation of a city or village ordinance, the city attorney or village prosecutor may file a petition in juvenile court. If such a petition is filed, for purposes of such proceeding, references in the Nebraska Juvenile Code to county attorney are construed to include a city attorney or village prosecutor.

Source:Laws 2014, LB464, § 14; Laws 2016, LB1010, § 1.

43-261.01. Juvenile court petition; felony or crime of domestic violence; court provide explanation of firearm possession consequences.

(1) When the petition alleges the juvenile committed an act which would constitute a felony or an act which would constitute a misdemeanor crime of domestic violence, the court shall explain the specific legal consequences that an adjudication for such an act will have on the juvenile's right to possess a firearm. The court shall provide such explanation at the earlier of:

(a) The juvenile's first court appearance or, if the juvenile is not present in the court at the time of the first appearance, by written notice sent by regular mail to the juvenile's last-known address; or

(b) Prior to adjudication.

(2) For purposes of this section:

(a) Firearm has the same meaning as in section 28-1201; and

(b) Misdemeanor crime of domestic violence has the same meaning as in section 28-1206.

Source:Laws 2018, LB990, § 6.

43-262. Issuance of process; notice in lieu of summons.

No summons or notice shall be required to be served on any person who shall voluntarily appear before the court and whose appearance is noted on the records thereof. In actions involving a juvenile who may invoke the jurisdiction of the court under the Nebraska Juvenile Code, the court, in its discretion, may cause the issuance of a notice in lieu of summons to the juvenile and to the juvenile's parent or the person who has the custody or control of the juvenile. Such notice in lieu of summons may be delivered by mail, shall be accompanied by a copy of the petition in cases when jurisdiction under subdivision (1) or (2) of section 43-247 is alleged, and shall contain a statement that (1) the recipient is entitled by statute to have the summons or notice, as the case may be, served upon him or her by personnel of the sheriff's office or some other person under the direction of the court, (2) service by the sheriff's office has been dispensed with for the convenience of the recipient, (3) if the recipient appears in court for the hearing fixed in the notice, he or she shall be deemed to have waived issuance and service of a notice and the seventy-two-hour waiting period, as the case may be, and (4) if he or she does not appear, a summons or notice, as the case may be, shall be served upon him or her by personnel of the sheriff's office or some other suitable person under the direction of the court.

Source:Laws 1981, LB 346, § 18; Laws 1985, LB 447, § 19.

43-263. Issuance of process; summons.

Upon the filing of the petition, a summons with a copy of the petition attached shall issue requiring the person who has custody of the juvenile or with whom the juvenile may be staying to appear personally and, unless the court orders otherwise, to bring the juvenile before the court at the time and place stated. Service of the summons shall be effected not less than seventy-two hours prior to the hearing set therein, except that service may be waived by the parties. Every summons sent shall comply with the Nebraska Indian Child Welfare Act, if applicable.

Source:Laws 1981, LB 346, § 19; Laws 1985, LB 255, § 33.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

When a child’s unmarried but known adjudicated or biological father has provided regular and substantial financial support for his child and the State initiates juvenile proceedings for abuse, neglect, or dependency, due process requires the State to notify the father of the proceedings. In that circumstance, the State must comply with the notification procedures that are statutorily required for other noncustodial parents—before the dispositional phase. This section and section 43-265 cannot be constitutionally applied to avoid this notification. But if the State shows that an unmarried, biological father’s whereabouts are unknown and that he has not supported his child, then he is not a parent entitled to notice and an opportunity to be heard in a juvenile proceeding involving his child born out of wedlock. Michael E. v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).

43-264. Summons; service.

If a juvenile court petition is filed that alleges that the juvenile is a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247, a summons with a copy of the petition attached shall be served as provided in section 43-263 on such juvenile and his or her parent, guardian, or custodian requiring the juvenile and such parent, guardian, or custodian to appear personally at the time and place stated. When so ordered by the court, personal service shall be obtained upon such juvenile notwithstanding any other provisions of the Nebraska Juvenile Code.

Source:Laws 1981, LB 346, § 20; Laws 1985, LB 447, § 20; Laws 2014, LB464, § 15.

43-265. Summons; notice to parent, guardian, or relative required; appointment of guardian ad litem.

If the person so summoned under section 43-263 is other than a parent or guardian of the juvenile, then the parent or guardian or both, if their residence is known, shall also be notified of the pendency of the case and of the time and place appointed; if there is neither a parent nor guardian, or if his or her residence is not known, then some relative, if there be one and his or her residence is known, shall be notified, except that in any case the court may appoint a guardian ad litem to act in behalf of the juvenile.

Source:Laws 1981, LB 346, § 21; Laws 2000, LB 1167, § 18.

Annotations

When a child’s unmarried but known adjudicated or biological father has provided regular and substantial financial support for his child and the State initiates juvenile proceedings for abuse, neglect, or dependency, due process requires the State to notify the father of the proceedings. In that circumstance, the State must comply with the notification procedures that are statutorily required for other noncustodial parents—before the dispositional phase. Section 43-263 and this section cannot be constitutionally applied to avoid this notification. But if the State shows that an unmarried, biological father’s whereabouts are unknown and that he has not supported his child, then he is not a parent entitled to notice and an opportunity to be heard in a juvenile proceeding involving his child born out of wedlock. Michael E. v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).

43-266. Immediate custody of juvenile; when.

If it appears that the juvenile is in such condition or surroundings that his or her welfare requires that his or her custody be immediately assumed by the court, the court may, by endorsement upon the summons provided under section 43-263, order the officer serving it to take the juvenile into custody at once.

Source:Laws 1981, LB 346, § 22.

43-267. Subpoena; notice of subsequent hearing.

(1) As provided under sections 43-263 to 43-266, subpoenas may be issued requiring the appearance of any other person whose presence, in the opinion of the judge, is necessary.

(2) Notice of the time, date, place, and purpose of any juvenile court hearing subsequent to the initial hearing, for which a summons or notice has been served or waived, shall be given to all parties either in court, by mail, or in such other manner as the court may direct.

Source:Laws 1981, LB 346, § 23.

43-268. Summons, notice, subpoena; manner given; time.

(1) Service of summons shall be made by the delivery of a copy of the summons to the person summoned or by leaving one at his or her usual place of residence with some person of suitable age and discretion residing therein.

(2) Except as provided in section 43-264, notice, when required, shall be given in the manner provided for service of a summons in a civil action. Any published notice shall simply state that a proceeding concerning the juvenile is pending in the court and that an order making an adjudication and disposition will be entered therein. If the names of one or both parents or the guardian are unknown, he, she, or they may be notified as the parent or parents, or guardian of (naming or describing the juvenile) found (stating address or place where the juvenile was found). Such notice shall be published once each week for three weeks, the last publication of which shall be at least five days before the time of hearing.

(3) Personal or residence service shall be effected at least seventy-two hours before the time set for the hearing, but upon cause shown the court shall grant additional time to prepare for a hearing. A guardian ad litem, one of the parents, the person having custody if there be no guardian ad litem, or the attorney for such juvenile may waive such service for the juvenile, if such juvenile concurs in open court duly noted on the records of the court. Registered or certified mail shall be mailed at least five days before the time of the hearing.

(4) Service of summons, notice, or subpoena may be made by any suitable person under the direction of the court.

Source:Laws 1981, LB 346, § 24; Laws 1983, LB 447, § 51.

Annotations

Service by publication under this provision can only be made after a reasonably diligent search fails to locate the party to be served. A reasonably diligent search for the purpose of justifying service by publication does not require the use of all possible or conceivable means of discovery, but is such an inquiry as a reasonably prudent person would make in view of the circumstances and must extend to those places where information is likely to be obtained and to those persons who, in the ordinary course of events, would be likely to receive news of or from the absent person. In re Interest of A.W., 224 Neb. 764, 401 N.W.2d 477 (1987).

Notice of an adjudication hearing must be given to the biological father as well as the biological mother of the children. In re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418 (1993).

43-269. Failure to comply with summons or subpoena; contempt.

If the person summoned or subpoenaed as provided in sections 43-262 to 43-268 shall without reasonable cause fail to appear and abide the order of the court or bring the juvenile, he or she may be proceeded against as in the case of contempt of court.

Source:Laws 1981, LB 346, § 25.

43-270. Warrant; when issued.

In case the summons cannot be served or the parties fail to obey the summons and, in any case when it shall be made to appear to the court that such summons would be ineffectual, a warrant may issue on the order of the court, either against the parent or guardian or the person having custody of the juvenile, or with whom the juvenile may be, or against the juvenile himself or herself.

Source:Laws 1981, LB 346, § 26.

43-271. Prompt hearing and disposition; detention review hearing.

(1)(a) A juvenile taken into custody pursuant to sections 43-248, 43-250, and 43-253 shall be brought before the court for adjudication as soon as possible after the petition is filed. On the return of the summons or other process, or mailing of the notice in lieu of summons, or as soon thereafter as legally may be, the court shall proceed to hear and dispose of the case as provided in section 43-279.

(b) The hearing as to a juvenile in custody of the probation officer or the court shall be held as soon as possible but, in all cases, within a six-month period after the petition is filed, and as to a juvenile not in such custody as soon as practicable but, in all cases, within a six-month period after the petition is filed. The computation of the six-month period provided for in this section shall be made as provided in section 29-1207, as applicable.

(2) Any juvenile taken into custody pursuant to sections 43-248, 43-250, and 43-253 may request a detention review hearing. The detention review hearing shall be conducted within forty-eight hours after the request.

Source:Laws 1981, LB 346, § 27; Laws 1982, LB 787, § 11; Laws 2006, LB 1113, § 39.

Annotations

This section and section 43-278 confer a statutory right to a prompt adjudication hearing to all juveniles within section 43-247(1), (2), (3)(b), and (4). This section and section 43-278 are directory and do not require absolute discharge of a juvenile not adjudicated within the prescribed time period. In re Interest of Brandy M. et al., 250 Neb. 510, 550 N.W.2d 17 (1996).

An appellate court's criminal speedy trial jurisprudence with respect to the calculations of the running of the speedy trial clock is applicable in the juvenile context. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).

Juveniles being held in custody are to receive an adjudication hearing as soon as possible, whereas juveniles not being held in custody are to receive an adjudication hearing as soon as practicable; both sets of juveniles should receive an adjudication hearing within a 6-month period after the petition is filed pursuant to this section, but a statutory scheduling preference is granted to those juveniles that are in custody pending adjudication. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).

This section provides a statutory right to a prompt adjudication hearing for all juveniles, but absolute discharge for the State's failure to comply with the 6-month period is not mandated and is within the discretion of the juvenile court, taking into consideration the best interests of the juvenile, the factors set forth in this section and section 43-278, the right of the juvenile to a prompt and fair adjudication, and the future treatment and rehabilitation of the juvenile in the event of an adjudication. In re Interest of Britny S., 11 Neb. App. 704, 659 N.W.2d 831 (2003).

43-272. Right to counsel; appointment; payment; guardian ad litem; appointment; when; duties; standards for guardians ad litem; standards for attorneys who practice in juvenile court.

(1)(a) In counties having a population of less than one hundred fifty thousand inhabitants:

(i) When any juvenile court petition is filed alleging jurisdiction of a juvenile pursuant to subdivision (2) of section 43-247, counsel shall be appointed for such juvenile; and

(ii) In any other instance in which a juvenile is brought without counsel before a juvenile court, the court shall advise such juvenile and his or her parent or guardian of their right to retain counsel and shall inquire of such juvenile and his or her parent or guardian as to whether they desire to retain counsel.

(b) In counties having a population of one hundred fifty thousand or more inhabitants, when any juvenile court petition is filed alleging jurisdiction of a juvenile pursuant to subdivision (1), (2), (3)(b), or (4) of section 43-247, counsel shall be appointed for such juvenile.

(c) The court shall inform any juvenile described in this subsection and his or her parent or guardian of such juvenile's right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an attorney to represent such juvenile for all proceedings before the juvenile court, except that if an attorney is appointed to represent such juvenile and the court later determines that a parent of such juvenile is able to afford an attorney, the court shall order such parent or juvenile to pay for services of the attorney to be collected in the same manner as provided by section 43-290. If the parent willfully refuses to pay any such sum, the court may commit him or her for contempt, and execution may issue at the request of the appointed attorney or the county attorney or by the court without a request.

(2) The court, on its own motion or upon application of a party to the proceedings, shall appoint a guardian ad litem for the juvenile: (a) If the juvenile has no parent or guardian of his or her person or if the parent or guardian of the juvenile cannot be located or cannot be brought before the court; (b) if the parent or guardian of the juvenile is excused from participation in all or any part of the proceedings; (c) if the parent is a juvenile or an incompetent; (d) if the parent is indifferent to the interests of the juvenile; or (e) in any proceeding pursuant to the provisions of subdivision (3)(a) of section 43-247.

A guardian ad litem shall have the duty to protect the interests of the juvenile for whom he or she has been appointed guardian, and shall be deemed a parent of the juvenile as to those proceedings with respect to which his or her guardianship extends.

(3) The court shall appoint an attorney as guardian ad litem. A guardian ad litem shall act as his or her own counsel and as counsel for the juvenile, unless there are special reasons in a particular case why the guardian ad litem or the juvenile or both should have separate counsel. In such cases the guardian ad litem shall have the right to counsel, except that the guardian ad litem shall be entitled to appointed counsel without regard to his or her financial ability to retain counsel. Whether such appointed counsel shall be provided at the cost of the county shall be determined as provided in subsection (1) of this section.

(4) By July 1, 2015, the Supreme Court shall provide by court rule standards for guardians ad litem for juveniles in juvenile court proceedings.

(5) By July 1, 2017, the Supreme Court shall provide guidelines setting forth standards for all attorneys who practice in juvenile court.

Source:Laws 1981, LB 346, § 28; Laws 1982, LB 787, § 12; Laws 2000, LB 1167, § 19; Laws 2015, LB15, § 1; Laws 2016, LB894, § 12; Laws 2021, LB307, § 2.

Cross References

Representation by public defender, see section 29-3915.

Annotations

A conflict of interest can develop between the roles of counsel for the juvenile and guardian ad litem if the juvenile expresses interests that are adverse to what the attorney considers to be in the juvenile's best interests. Usually when an actual conflict of interest develops between the two roles, separate counsel should be appointed for the child. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

Given the broad power granted by the Legislature to juvenile courts to determine whether in proceedings under subsection (3)(a) of section 43-247 the guardian ad litem role and the role of counsel for the juvenile should be split, an appellate court reviews the decision to use or not to use that power de novo on the record for an abuse of discretion. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

The determination whether "special reasons" exist for appointing separate counsel for a juvenile in proceedings under subsection (3)(a) of section 43-247 must be based on a case-by-case basis, taking into consideration the totality of circumstances. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

The Nebraska Juvenile Code recognizes that generally, the role of guardian ad litem and counsel can be carried out by the same attorney. But the code requires that the roles be split when there are "special reasons in a particular case." In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

The phrase "special reasons in a particular case" as used in subsection (3) of this section grants juvenile courts broad power to safeguard the interests of the juvenile and to ensure that the juvenile's statutory and constitutional rights are respected. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

When an attorney is appointed for a juvenile under subsections (2) and (3) of this section in proceedings under subsection (3)(a) of section 43-247, the attorney generally serves as both guardian ad litem and as counsel for the child. In re Interest of J.K., 265 Neb. 253, 656 N.W.2d 253 (2003).

On a motion to revoke probation, the court must advise the juvenile and his or her parent or guardian of their right to retain counsel, inquire of the juvenile and his or her parent or guardian as to whether they desire to retain counsel, and inform the juvenile and his or her parent or guardian of the juvenile's right to counsel at county expense if none of them is able to afford counsel. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).

43-272.01. Guardian ad litem; appointment; powers and duties; consultation; payment of costs; compensation.

(1) A guardian ad litem as provided for in subsections (2) and (3) of section 43-272 shall be appointed when a child is removed from his or her surroundings pursuant to subdivision (6) or (8) of section 43-248, subsection (5) of section 43-250, or section 43-251. If a county has a guardian ad litem division created under section 23-3901, the court shall appoint the guardian ad litem division unless a conflict of interest exists or the court determines that an appointment outside of the guardian ad litem division would be more appropriate to serve the child's best interests. If removal has not occurred, a guardian ad litem shall be appointed at the commencement of all cases brought under subdivision (3)(a) or (7) of section 43-247 and section 28-707.

(2) In the course of discharging duties as guardian ad litem, the person so appointed shall consider, but not be limited to, the criteria provided in this subsection. The guardian ad litem:

(a) Is appointed to stand in lieu of a parent for a protected juvenile who is the subject of a juvenile court petition, shall be present at all hearings before the court in such matter unless expressly excused by the court, and may enter into such stipulations and agreements concerning adjudication and disposition deemed by him or her to be in the juvenile's best interests;

(b) Is not appointed to defend the parents or other custodian of the protected juvenile but shall defend the legal and social interests of such juvenile. Social interests shall be defined generally as the usual and reasonable expectations of society for the appropriate parental custody and protection and quality of life for juveniles without regard to the socioeconomic status of the parents or other custodians of the juvenile;

(c) May at any time after the filing of the petition move the court of jurisdiction to provide medical or psychological treatment or evaluation as set out in section 43-258. The guardian ad litem shall have access to all reports resulting from any examination ordered under section 43-258, and such reports shall be used for evaluating the status of the protected juvenile;

(d) Shall make every reasonable effort to become familiar with the needs of the protected juvenile which (i) shall include consultation with the juvenile in his or her respective placement within two weeks after the appointment and once every six months thereafter, unless the court approves other methods of consultation as provided in subsection (6) of this section, and inquiry of the most current caseworker, foster parent, or other custodian and (ii) may include inquiry of others directly involved with the juvenile or who may have information or knowledge about the circumstances which brought the juvenile court action or related cases and the development of the juvenile, including biological parents, physicians, psychologists, teachers, and clergy members;

(e) May present evidence and witnesses and cross-examine witnesses at all evidentiary hearings. In any proceeding under this section relating to a child of school age, certified copies of school records relating to attendance and academic progress of such child are admissible in evidence;

(f) Shall be responsible for making written reports and recommendations to the court at every dispositional, review, or permanency planning hearing regarding (i) the temporary and permanent placement of the protected juvenile, (ii) the type and number of contacts with the juvenile, (iii) the type and number of contacts with other individuals described in subdivision (d) of this subsection, (iv) compliance with the Nebraska Strengthening Families Act, and (v) any further relevant information on a form prepared by the Supreme Court. As an alternative to the written reports and recommendations, the court may provide the guardian ad litem with a checklist that shall be completed and presented to the court at every dispositional or review hearing. A copy of the written reports and recommendations to the court or a copy of the checklist presented to the court shall also be submitted to the Foster Care Review Office for any juvenile in foster care placement as defined in section 43-1301;

(g) Shall consider such other information as is warranted by the nature and circumstances of a particular case; and

(h) May file a petition in the juvenile court on behalf of the juvenile, including a supplemental petition as provided in section 43-291.

(3) Nothing in this section shall operate to limit the discretion of the juvenile court in protecting the best interests of a juvenile who is the subject of a juvenile court petition.

(4) For purposes of subdivision (2)(d) of this section, the court may order the expense of such consultation, if any, to be paid by the county in which the juvenile court action is brought or the court may, after notice and hearing, assess the cost of such consultation, if any, in whole or in part to the parents of the juvenile. The ability of the parents to pay and the amount of the payment shall be determined by the court by appropriate examination.

(5) The guardian ad litem may be compensated on a per-case appointment system or pursuant to a system of multi-case contracts or may be employed by a guardian ad litem division created pursuant to section 23-3901. If a county creates a guardian ad litem division, guardian ad litem appointments shall be made first from the guardian ad litem division unless a conflict exists or the court determines that an appointment outside of the guardian ad litem division would be more appropriate to serve the child's best interests. Regardless of the method of compensation, billing hours and expenses for court-appointed guardian ad litem services shall be submitted to the court for approval and shall be recorded on a written, itemized billing statement signed by the attorney responsible for the case. Billing hours and expenses for guardian ad litem services rendered under a contract for such services shall be submitted to the entity with whom the guardian ad litem contracts in the form and manner prescribed by such entity for approval. Case time for guardian ad litem services shall be scrupulously accounted for by the attorney responsible for the case. Additionally, in the case of a multi-lawyer firm or organization retained for guardian ad litem services, the name of the attorney or attorneys assigned to each guardian ad litem case shall be recorded.

(6) The guardian ad litem shall meet in person with the juvenile for purposes of the consultation required by subdivision (2)(d) of this section unless prohibited or made impracticable by exceptional circumstances, including, but not limited to, situations in which an unreasonable geographical distance is involved between the location of the guardian ad litem and the juvenile. When such exceptional circumstances exist, the guardian ad litem shall attempt such consultation by other reasonable means, including, but not limited to, by telephone or suitable electronic means, if the juvenile is of sufficient age and capacity to participate in such means of communication and there are no other barriers preventing such means of communication. If consultation by telephone or suitable electronic means is not feasible, the guardian ad litem shall seek direction from the court as to any other acceptable method by which to accomplish consultation required by subdivision (2)(d) of this section.

Source:Laws 1982, LB 787, § 13; Laws 1985, LB 447, § 21; Laws 1990, LB 1222, § 2; Laws 1992, LB 1184, § 12; Laws 1995, LB 305, § 1; Laws 1997, LB 622, § 68; Laws 2008, LB1014, § 39; Laws 2010, LB800, § 21; Laws 2013, LB561, § 17; Laws 2015, LB15, § 2; Laws 2016, LB746, § 15; Laws 2016, LB894, § 13; Laws 2024, LB1051, § 15.
Effective Date: July 19, 2024

Cross References

Nebraska Strengthening Families Act, see section 43-4701.

Annotations

Subsection (2) of this section is not rendered unconstitutional by its authorization for a guardian ad litem to perform the investigatory duties of a guardian ad litem as well as bring and try a motion to terminate parental rights. In re Interest of Kantril P. & Chenelle P., 257 Neb. 450, 598 N.W.2d 729 (1999).

A guardian ad litem has the authority to present evidence and witnesses, to cross-examine witnesses at all evidentiary hearings, and to argue. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991).

This section has long provided that a guardian ad litem in certain juvenile cases has certain duties, which may include filing petitions on behalf of juveniles, presenting evidence and witnesses, and cross-examining witnesses at all evidentiary hearings. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

If the record supports the action, either the trial court or the appellate court can disallow guardian ad litem fees as too high, without the support of expert testimony. In re Interest of Antone C. et al., 12 Neb. App. 152, 669 N.W.2d 69 (2003).

The touchstone for awarding guardian ad litem fees is reasonableness, both of the necessity of the services rendered and the fees awarded. In re Interest of Antone C. et al., 12 Neb. App. 152, 669 N.W.2d 69 (2003).

Without something to support a finding that a guardian ad litem's fact investigation was not proper or not required, the disallowance of a charge as unreasonable on the ground that the investigation was unnecessary is questionable. In re Interest of Antone C. et al., 12 Neb. App. 152, 669 N.W.2d 69 (2003).

43-272.02. Court appointed special advocate volunteer.

The court may appoint a court appointed special advocate volunteer pursuant to the Court Appointed Special Advocate Act.

Source:Laws 2000, LB 1167, § 22.

Cross References

Court Appointed Special Advocate Act, see section 43-3701.

43-273. Appointed counsel and guardians ad litem; fees; allowance.

Counsel and guardians ad litem appointed outside of the guardian ad litem division as provided in section 43-272 shall apply to the court before which the proceedings were had for fees for services performed. The court upon hearing the application shall fix reasonable fees. The county board of the county wherein the proceedings were had shall allow the account, bill, or claim presented by any attorney or guardian ad litem for services performed under section 43-272 in the amount determined by the court. No such account, bill, or claim shall be allowed by the county board until the amount thereof shall have been determined by the court.

Source:Laws 1981, LB 346, § 29; Laws 2016, LB894, § 15.

Annotations

Orders fixing fees for a court-appointed counsel in juvenile cases are final orders because they are made in a special proceeding and affect a substantial right. In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949 N.W.2d 299 (2020).

This section does not require that a county be notified when a fee application is filed by court-appointed counsel, nor does it require that an evidentiary hearing be routinely held on such an application. In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949 N.W.2d 299 (2020).

When a juvenile case is appealed, the appointed counsel should apply to the juvenile court, not the appellate court, for payment of services performed on appeal. In re Claim of Roberts for Attorney Fees, 307 Neb. 346, 949 N.W.2d 299 (2020).

43-274. County attorney; city attorney; preadjudication powers and duties; petition, pretrial diversion, or restorative justice practice or service; transfer; procedures; appeal; admission, confession, or statement made by juvenile; inadmissible; when.

(1) The county attorney or city attorney, having knowledge of a juvenile within his or her jurisdiction who appears to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and taking into consideration the criteria in section 43-276, may proceed as provided in this section.

(2) The county attorney or city attorney may offer pretrial diversion to the juvenile in accordance with a juvenile pretrial diversion program established pursuant to sections 43-260.02 to 43-260.07.

(3)(a) If a juvenile appears to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, the county attorney or city attorney may utilize restorative justice practices or services as a form of, or condition of, diversion or plea bargaining or as a recommendation as a condition of disposition, through a referral to a restorative justice facilitator.

(b) For victim-involved offenses, a restorative justice facilitator shall conduct a separate individual intake and assessment session with each juvenile and victim to determine which, if any, restorative justice practice is appropriate. All participation by the victim shall be voluntary. If the victim declines to participate in any or all parts of the restorative justice practice, a victim surrogate may be invited to participate with the juvenile. If, after assessment, participation by the juvenile is deemed inappropriate, the restorative justice facilitator shall return the referral to the referring county attorney or city attorney.

(c) A victim or his or her parent or guardian shall not be charged a fee. A juvenile or his or her parent or guardian may be charged a fee according to the policies and procedures of the restorative justice facilitator and the referring county attorney or city attorney. Restorative justice facilitators shall use a sliding fee scale based on income and shall not deny services based upon the inability of a juvenile or his or her parent or guardian to pay, if funding is otherwise available.

(d) Prior to participating in any restorative justice practice or service under this section, the juvenile, the juvenile's parent or guardian, and the victim, if he or she is participating, shall sign a consent to participate form.

(e) If a reparation plan agreement is reached, the restorative justice facilitator shall forward a copy of the agreement to the referring county attorney or city attorney. The terms of the reparation plan agreement shall specify provisions for reparation, monitoring, completion, and reporting. An agreement may include, but is not limited to, one or more of the following:

(i) Participation by the juvenile in certain community service programs;

(ii) Payment of restitution by the juvenile to the victim;

(iii) Reconciliation between the juvenile and the victim;

(iv) Apology, when appropriate, between the juvenile and the victim; and

(v) Any other areas of agreement.

(f) The restorative justice facilitator shall give notice to the county attorney or city attorney regarding the juvenile's compliance with the terms of the reparation plan agreement. If the juvenile does not satisfactorily complete the terms of the agreement, the county attorney or city attorney may:

(i) Refer the matter back to the restorative justice facilitator for further restorative justice practices or services; or

(ii) Proceed with filing a juvenile court petition or criminal charge.

(g) If a juvenile meets the terms of the reparation plan agreement, the county attorney or city attorney shall either:

(i) Not file a juvenile court petition or criminal charge against the juvenile for the acts for which the juvenile was referred for restorative justice practice or services when referred as a diversion or an alternative to diversion; or

(ii) File a reduced charge as previously agreed when referred as a part of a plea negotiation.

(4) The county attorney or city attorney shall file the petition in the court with jurisdiction as outlined in section 43-246.01.

(5)(a) When a transfer from juvenile court to county court or district court is authorized because there is concurrent jurisdiction, the county attorney or city attorney may move to transfer the proceedings. Such motion shall be filed with the juvenile court petition unless otherwise permitted for good cause shown. The juvenile court shall schedule a hearing on such motion within fifteen days after the motion is filed. The county attorney or city attorney has the burden by a preponderance of the evidence to show why such proceeding should be transferred. The juvenile shall be represented by counsel at the hearing and may present the evidence as to why the proceeding should be retained. After considering all the evidence and reasons presented by both parties, the juvenile court shall retain the proceeding unless the court determines that a preponderance of the evidence shows that the proceeding should be transferred to the county court or district court. The court shall make a decision on the motion within thirty days after the hearing. The juvenile court shall set forth findings for the reason for its decision.

(b) An order granting or denying transfer of the case from juvenile court to county or district court shall be considered a final order for the purposes of appeal. Upon the entry of an order, any party may appeal to the Court of Appeals within ten days. Such review shall be advanced on the court docket without an extension of time granted to any party except upon a showing of exceptional cause. Appeals shall be submitted, assigned, and scheduled for oral argument as soon as the appellee's brief is due to be filed. The Court of Appeals shall conduct its review in an expedited manner and shall render the judgment and opinion, if any, as speedily as possible. During the pendency of any such appeal, the juvenile court may continue to enter temporary orders in the best interests of the juvenile pursuant to section 43-295.

(c) If the proceeding is transferred from juvenile court to the county court or district court, the county attorney or city attorney shall file a criminal information in the county court or district court, as appropriate, and the accused shall be arraigned as provided for a person eighteen years of age or older in subdivision (1)(b) of section 29-1816.

(d)(i) Except as provided in subdivision (5)(d)(ii) of this section, any admission, confession, or statement made by the juvenile to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of a motion to transfer a case from juvenile court to county court or district court shall be inadmissible in any criminal or civil proceeding.

(ii) Subdivision (5)(d)(i) of this section does not prevent any such admission, confession, or statement from being:

(A) Admissible in proceedings relating to such motion to transfer;

(B) Admissible in disposition proceedings for such juvenile under the Nebraska Juvenile Code if the case is not transferred to county court or district court;

(C) Included in any presentence investigation report for such juvenile if the case is transferred to county court or district court; and

(D) Admissible in such case to impeach such juvenile during cross-examination if the juvenile testifies at trial or during juvenile court proceedings and such testimony is materially inconsistent with a prior statement made by the juvenile to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of the motion to transfer such case.

Source:Laws 1981, LB 346, § 30; Laws 1987, LB 638, § 4; Laws 1998, LB 1073, § 20; Laws 2003, LB 43, § 13; Laws 2014, LB464, § 16; Laws 2017, LB11, § 2; Laws 2019, LB595, § 28; Laws 2024, LB184, § 2.
Effective Date: July 19, 2024

Annotations

An order granting transfer from juvenile court to county court or district court is reviewed de novo on the record for an abuse of discretion. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).

In determining whether a case should be transferred from juvenile court to criminal court, a juvenile court should consider those factors set forth in section 43-276; there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).

Actions involving juveniles fitting into categories under section 43-246.01(3) may be initiated either in the juvenile court or in the county or district court and may be transferred as provided in this section. In re Interest of Luis D., 29 Neb. App. 495, 956 N.W.2d 25 (2021).

When the prosecution seeks to transfer a juvenile offender's case to criminal court, the juvenile court must retain the matter unless a preponderance of the evidence shows that the proceeding should be transferred to the county court or district court. The prosecution has the burden by a preponderance of the evidence to show why such proceeding should be transferred. In re Interest of William E., 29 Neb. App. 44, 950 N.W.2d 392 (2020).

The mandate that allegations under section 43-247(1), (2), and (4) be made with the same specificity as a criminal complaint merely reconciles the pleading practice regarding juvenile offenders with that of adult criminals. In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012).

The pleading standard for allegations under section 43-247(3) stems from the requirements of due process, and the factual allegations must give a parent notice of the bases for seeking to prove that the child is within the meaning of section 43-247(3)(a). In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012).

A guardian ad litem appointed by the juvenile court does not have the authority to initiate a juvenile court case by filing a petition alleging that a child is within the meaning of section 43-247(3)(a). In re Interest of David M. et al., 19 Neb. App. 399, 808 N.W.2d 357 (2011).

Subsection (1) of this section authorizes a county attorney with knowledge of a juvenile in his or her county falling within the purview of section 43-247(3)(a) to file a petition in that county's juvenile court. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011).

Juvenile court did not err in refusing to allow an intervenor to proceed on the intervenor's petition where there was no evidence to establish the county attorney's consent to the filing of the intervenor's petition as required by this section. In re Interest of Jamie P., 12 Neb. App. 261, 670 N.W.2d 814 (2003).

A petition filed pursuant to this section, specifying facts under subsection (3)(a) of section 43-247, must allege facts which would show that a child lacks proper parental care by reason of the inadequacy of any parent whose custody or right to custody might be affected, so that both parents may understand that the litigation concerns their respective rights. In re Interest of Kelly D., 3 Neb. App. 251, 526 N.W.2d 439 (1994).

43-275. Petition, complaint, or restorative justice program consent form; filing; time.

Whenever a juvenile is detained or placed in custody under the provisions of section 43-253, a petition, complaint, or restorative justice program consent form must be filed within forty-eight hours excluding nonjudicial days.

Source:Laws 1981, LB 346, § 31; Laws 1998, LB 1073, § 21; Laws 2019, LB595, § 29.

Annotations

Failure to file a petition within forty-eight hours, as provided in this section, after a juvenile has been taken into custody pursuant to section 43-248 does not deprive the juvenile court of jurisdiction. In re Interest of S.S.L., 219 Neb. 911, 367 N.W.2d 710 (1985).

43-276. County attorney; city attorney; criminal charge, juvenile court petition, pretrial diversion, restorative justice, or transfer of case; determination; considerations; referral to community-based resources.

(1) The county attorney or city attorney, in making the determination whether to file a criminal charge, file a juvenile court petition, offer juvenile pretrial diversion or restorative justice, or transfer a case to or from juvenile court, and the juvenile court, county court, or district court in making the determination whether to transfer a case, shall consider: (a) The type of treatment such juvenile would most likely be amenable to; (b) whether there is evidence that the alleged offense included violence; (c) the motivation for the commission of the offense; (d) the age of the juvenile and the ages and circumstances of any others involved in the offense; (e) the previous history of the juvenile, including whether he or she had been convicted of any previous offenses or adjudicated in juvenile court; (f) the best interests of the juvenile; (g) consideration of public safety; (h) consideration of the juvenile's ability to appreciate the nature and seriousness of his or her conduct; (i) whether the best interests of the juvenile and the security of the public may require that the juvenile continue in secure detention or under supervision for a period extending beyond his or her minority and, if so, the available alternatives best suited to this purpose; (j) whether the victim or juvenile agree to participate in restorative justice; (k) whether there is a juvenile pretrial diversion program established pursuant to sections 43-260.02 to 43-260.07; (l) whether the juvenile has been convicted of or has acknowledged unauthorized use or possession of a firearm; (m) whether a juvenile court order has been issued for the juvenile pursuant to section 43-2,106.03; (n) whether the juvenile is a criminal street gang member; and (o) such other matters as the parties deem relevant to aid in the decision.

(2) Prior to filing a petition alleging that a juvenile is a juvenile as described in subdivision (3)(b) of section 43-247, the county attorney shall make reasonable efforts to refer the juvenile and family to community-based resources available to address the juvenile's behaviors, provide crisis intervention, and maintain the juvenile safely in the home. Failure to describe the efforts required by this subsection shall be a defense to adjudication.

Source:Laws 1981, LB 346, § 32; Laws 1998, LB 1073, § 22; Laws 2000, LB 1167, § 20; Laws 2003, LB 43, § 14; Laws 2008, LB1014, § 40; Laws 2009, LB63, § 30; Laws 2012, LB972, § 2; Laws 2014, LB464, § 17; Laws 2015, LB482, § 5; Laws 2019, LB595, § 30.

Annotations

1. Factors

2. Miscellaneous

1. Factors

In deciding whether to grant the requested waiver and to transfer the proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in the light of the criteria or factors set forth in this section. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

There is no arithmetical computation or formula required in a court's consideration of the statutory criteria or factors. Also, there are no weighted factors. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

In determining whether a case should be transferred from juvenile court to criminal court, a juvenile court should consider those factors set forth in this section; there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).

In deciding whether to transfer adult criminal proceedings to juvenile court, the court having jurisdiction must carefully consider the criteria set forth in this section. In weighing the criteria set forth in this section, there is no arithmetical computation or formula required in the court's consideration of the statutory criteria. In order to retain jurisdiction pursuant to section 29-1816, the district court does not need to resolve every factor in this section against the juvenile. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).

In weighing the factors set forth in this section, there is no arithmetical computation or formula required in the court's consideration of the statutory criteria. In order to retain the proceedings, the court need not resolve every factor against the juvenile. There are no weighted factors and no prescribed method by which more or less weight is assigned to each specific factor. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).

In deciding whether to transfer adult criminal proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the criteria set forth in this section. State v. Reynolds, 247 Neb. 608, 529 N.W.2d 64 (1995).

Where 16-year-old defendant was charged with violent adult crimes, was an obvious threat to the public, and, if convicted, could not easily be rehabilitated in the juvenile correctional system or properly punished for the atrocities he would be adjudged to have committed, no abuse of discretion occurred in denial of transfer to juvenile court. State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992).

The court having jurisdiction over a pending criminal prosecution of a juvenile must consider the juvenile's request for waiver to transfer the proceedings to the juvenile court in light of the criteria set forth in this section. State v. Doyle, 237 Neb. 944, 468 N.W.2d 594 (1991).

The factors set forth in this section provide a balancing test by which the protection of the public is weighed against the practical and not problematical rehabilitation of the juvenile. For retention of the criminal proceedings, the court need not resolve every factor against the juvenile. The standard of review applicable to an appeal from denial of a motion to transfer to juvenile court is abuse of discretion. State v. Phinney, 236 Neb. 76, 459 N.W.2d 200 (1990).

In deciding whether to grant a requested waiver of jurisdiction and transfer proceedings to juvenile court pursuant to section 29-1816, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria set forth in this section. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).

This section and section 29-1816 provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).

This section and section 29-1816 involve a balancing test, namely, public protection and societal security weighed against practical and not problematic rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court. Where the record supported the trial court's findings that the crime was violent, that the defendant may require treatment beyond the age of majority, that defendant's rehabilitative needs were beyond the scope of the juvenile court, and that more protection of the public was required than would be available in juvenile court, the district court did not abuse its discretion in retaining jurisdiction. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987).

This section sets forth 15 factors for a juvenile court to consider in making the determination of whether to transfer a case to county court or district court. In re Interest of William E., 29 Neb. App. 44, 950 N.W.2d 392 (2020).

In determining whether a case should be transferred to juvenile court, a court should consider those factors set forth in this section. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018).

Considering the statutory factors on a motion to transfer to juvenile court is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

In case involving multiple counts of possession of child pornography, the district court properly weighed all applicable statutory factors in denying juvenile defendant's motion to transfer his case to juvenile court; in addition to the fact that there would likely be insufficient time to treat the defendant in the juvenile system before he aged out of the juvenile court's jurisdiction, the district court considered the defendant's maturity, as well as the fact that the motivation for the offenses appeared to be the desire to view and distribute pornography, predominantly involving young children, which preference was potentially associated with someone afflicted with pedophilia. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

In order to retain juvenile proceedings in the district court, the court does not need to resolve every statutory factor against the juvenile; moreover, there are no weighted factors and no prescribed method by which more or less weight is assigned to each specific factor. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

2. Miscellaneous

Subsection (2) of this section requires the county attorney to make reasonable efforts to refer the juvenile and family to community-based resources. In re Interest of Reality W., 302 Neb. 878, 925 N.W.2d 355 (2019).

Pursuant to section 29-1816(3)(a), after considering the evidence and the criteria set forth in this section, the court shall transfer the case to juvenile court unless a sound basis exists for retaining the case in county court or district court. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

When a court's basis for retaining jurisdiction over a juvenile is supported by appropriate evidence, it cannot be said that the court abused its discretion in refusing to transfer the case to the juvenile court. State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).

A juvenile court has concurrent jurisdiction over a person charged in the district court who is younger than 18 years of age when the allegedly committed acts constitute Class I, IA, IB, IC, ID, II, and IIA felonies and who has not yet reached the age of majority during the course of the proceedings requesting transfer from the district court to the juvenile court. State v. Burris, 30 Neb. App. 109, 965 N.W.2d 828 (2021).

The district court abused its discretion in granting the transfer of two criminal cases to the juvenile court because there was substantial evidence supporting the retention of the cases in the district court for the sake of public safety and societal security, and there was a lack of evidence demonstrating that any further rehabilitation through the juvenile system would be practical and nonproblematical in the limited time left under the juvenile court's jurisdiction. State v. Esai P., 28 Neb. App. 226, 942 N.W.2d 416 (2020).

Denial of a motion to transfer without a specific finding with regard to subdivision (1)(h) of this section does not constitute an abuse of discretion. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018).

Second degree murder and use of a deadly weapon charges filed against a 15-year-old were retained in the district court; the trial court's denial of a motion to transfer to the juvenile court is reviewed for an abuse of discretion. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018).

The county attorney's coordinated effort with the school and its letter referring the family to various available community-based resources, including website resources, as well as specific contact information for a "Truancy Resource Specialist," complied with the "reasonable efforts" requirement of subsection (2) of this section as applied to the habitual truancy provision of subdivision (3)(b) of section 43-247. In re Interest of Hla H., 25 Neb. App. 118, 903 N.W.2d 664 (2017).

43-277. Juvenile in custody; adjudication hearing; requirements.

Except as provided in sections 43-254.01 and 43-277.01 and unless sooner released, a juvenile taken into custody or remaining in custody under sections 43-248, 43-250, 43-253, and 43-254 shall be brought before the juvenile court for an adjudication hearing as soon as possible but, in all cases, within a six-month period after a petition is filed. If the juvenile is not brought before the juvenile court within such period of time, he or she shall be released from custody, except that such hearing shall not be had until there is before the court the juvenile when charged under subdivision (1), (2), (3)(b), or (4) of section 43-247, and in all cases the juvenile's custodian or person with whom he or she may be, or his or her parent or guardian, or, if they fail to appear, and in all cases under subdivision (3)(a) of section 43-247, a guardian ad litem. The computation of the six-month period provided for in this section shall be made as provided in section 29-1207, as applicable.

Source:Laws 1981, LB 346, § 33; Laws 1982, LB 787, § 14; Laws 1997, LB 622, § 69.

43-277.01. Mental health hearing; requirements.

All hearings concerning a juvenile court petition filed pursuant to subdivision (3)(c) of section 43-247 shall be closed to the public except at the request of the juvenile or the juvenile's parent or guardian. Such hearings shall be held in a courtroom or at any convenient and suitable place designated by the juvenile court judge. The proceeding may be conducted where the juvenile is currently residing if the juvenile is unable to travel.

Source:Laws 1997, LB 622, § 70.

43-278. Adjudication hearing; held within ninety days after petition is filed; additional reviews; telephonic or videoconference hearing; authorized.

Except as provided in sections 43-254.01 and 43-277.01, all cases filed under subdivision (3) of section 43-247 shall have an adjudication hearing not more than ninety days after a petition is filed. Upon a showing of good cause, the court may continue the case beyond the ninety-day period. The court shall also review every case filed under such subdivision which has been adjudicated or transferred to it for disposition not less than once every six months. All communications, notices, orders, authorizations, and requests authorized or required in the Nebraska Juvenile Code; all nonevidentiary hearings; and any evidentiary hearings approved by the court and by stipulation of all parties may be heard by the court telephonically or by videoconferencing in a manner that ensures the preservation of an accurate record. All of the orders generated by way of a telephonic or videoconference hearing shall be recorded as if the judge were conducting a hearing on the record.

Source:Laws 1981, LB 346, § 34; Laws 1992, LB 1184, § 13; Laws 1997, LB 622, § 71; Laws 2010, LB800, § 22; Laws 2013, LB103, § 2.

Annotations

Neither this section nor section 43-251.01(2) prohibits a juvenile court from placing a juvenile at a youth rehabilitation and treatment center when the court has adjudicated a juvenile under section 43-247(2) and (3). In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

When a court adjudicates a juvenile under section 43-247(2) and (3) and commits the juvenile to the Office of Juvenile Services with a placement at a youth rehabilitation and treatment center, it has determined that the subsection (2) adjudication will control the juvenile's disposition. The disposition determination controls which review hearing statute applies, and this section's requirement for 6-month review hearings does not authorize the court to conduct review hearings. Instead, the prohibition in section 43-408(2) of review hearings for juveniles placed at a youth rehabilitation and treatment center controls. In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

This section and section 43-271 confer a statutory right to a prompt adjudication hearing to all juveniles within section 43-247(1), (2), (3)(b), and (4). This section and section 43-271 are directory and do not require absolute discharge of a juvenile not adjudicated within the prescribed time period. In re Interest of Brandy M. et al., 250 Neb. 510, 550 N.W.2d 17 (1996).

The statutory provision requiring that an adjudication hearing be held within six months after a juvenile petition is filed is directory, not mandatory. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).

This section is directory, not mandatory. As such, this section does not mandate that a case be dismissed if the adjudication is not completed within ninety days. In re Interest of Draygon W. et al., 31 Neb. App. 400, 980 N.W.2d 648 (2022).

The statutory provision requiring that an adjudication hearing be held within 90 days after a juvenile petition is filed is directory, not mandatory. In re Interest of Maxwell T., 15 Neb. App. 47, 721 N.W.2d 676 (2006).

Section 43-271 provides a statutory right to a prompt adjudication hearing for all juveniles, but absolute discharge for the State's failure to comply with the 6-month period is not mandated and is within the discretion of the juvenile court, taking into consideration the best interests of the juvenile, the factors set forth in section 43-271 and this section, the right of the juvenile to a prompt and fair adjudication, and the future treatment and rehabilitation of the juvenile in the event of an adjudication. In re Interest of Britny S., 11 Neb. App. 704, 659 N.W.2d 831 (2003).

43-279. Juvenile violator or juvenile in need of special supervision; rights of parties; proceedings.

(1) The adjudication portion of hearings shall be conducted before the court without a jury, applying the customary rules of evidence in use in trials without a jury. When the petition alleges the juvenile to be within the provisions of subdivision (1), (2), (3)(b), or (4) of section 43-247 and the juvenile or his or her parent, guardian, or custodian appears with or without counsel, the court shall inform the parties:

(a) Of the nature of the proceedings and the possible consequences or dispositions pursuant to sections 43-284 to 43-286, 43-289, and 43-290 that may apply to the juvenile's case following an adjudication of jurisdiction;

(b) Of such juvenile's right to counsel as provided in sections 43-272 and 43-273;

(c) Of the privilege against self-incrimination by advising the juvenile, parent, guardian, or custodian that the juvenile may remain silent concerning the charges against the juvenile and that anything said may be used against the juvenile;

(d) Of the right to confront anyone who testifies against the juvenile and to cross-examine any persons who appear against the juvenile;

(e) Of the right of the juvenile to testify and to compel other witnesses to attend and testify in his or her own behalf;

(f) Of the right of the juvenile to a speedy adjudication hearing; and

(g) Of the right to appeal and have a transcript for such purpose.

After giving such warnings and admonitions, the court may accept an in-court admission or answer of no contest by the juvenile of all or any part of the allegations in the petition if the court has determined from examination of the juvenile and those present that such admission or answer of no contest is intelligently, voluntarily, and understandingly made and with an affirmative waiver of rights and that a factual basis for such admission or answer of no contest exists. The waiver of the right to counsel shall satisfy section 43-3102. The court may base its adjudication provided in subsection (2) of this section on such admission or answer of no contest.

(2) If the juvenile denies the petition or stands mute the court shall first allow a reasonable time for preparation if needed and then consider only the question of whether the juvenile is a person described by section 43-247. After hearing the evidence on such question, the court shall make a finding and adjudication, to be entered on the records of the court, whether or not the juvenile is a person described by subdivision (1), (2), (3)(b), or (4) of section 43-247 based upon proof beyond a reasonable doubt. If an Indian child is involved, the standard of proof shall be in compliance with the Nebraska Indian Child Welfare Act, if applicable.

(3) If the court shall find that the juvenile named in the petition is not within the provisions of section 43-247, it shall dismiss the case. If the court finds that the juvenile named in the petition is such a juvenile, it shall make and enter its findings and adjudication accordingly, designating which subdivision or subdivisions of section 43-247 such juvenile is within; the court shall allow a reasonable time for preparation if needed and then proceed to an inquiry into the proper disposition to be made of such juvenile.

Source:Laws 1981, LB 346, § 35; Laws 1982, LB 787, § 15; Laws 1985, LB 255, § 34; Laws 1985, LB 447, § 22; Laws 1998, LB 1073, § 23; Laws 2016, LB894, § 17; Laws 2023, LB50, § 21.

Cross References

Acceptance of plea, finding by court required, see section 29-401.

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

Courts should take special care in scrutinizing a purported confession or waiver by a child. In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).

Where a juvenile waives his or her right to counsel, the burden lies with the State, by a preponderance of the evidence, to show that the waiver was knowingly, intelligently, and voluntarily made. In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).

Whether a juvenile has knowingly, voluntarily, and intelligently waived the right to counsel is to be determined by the totality of the circumstances, including the age, intelligence, and education of the juvenile; the juvenile's background and experience; the presence of the juvenile's parents; the language used by the court in describing the juvenile's rights; the juvenile's conduct; the juvenile's emotional stability; and the intricacy of the offense. In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).

43-279.01. Juvenile in need of assistance or termination of parental rights; rights of parties; appointment of counsel; court; powers; proceedings.

(1) When the petition alleges the juvenile to be within the provisions of subdivision (3)(a) of section 43-247 or when termination of parental rights is sought pursuant to subdivision (6) of section 43-247 and the parent, custodian, or guardian appears with or without counsel, the court shall inform the parties of the:

(a) Nature of the proceedings and the possible consequences or dispositions pursuant to sections 43-284, 43-285, and 43-288 to 43-295;

(b) Right of the parent to engage counsel of his or her choice at his or her own expense or to have counsel appointed if the parent is unable to afford to hire a lawyer;

(c) Right of a stepparent, custodian, or guardian to engage counsel of his or her choice and, if there are allegations against the stepparent, custodian, or guardian or when the petition is amended to include such allegations, to have counsel appointed if the stepparent, custodian, or guardian is unable to afford to hire a lawyer;

(d) Right to remain silent as to any matter of inquiry if the testimony sought to be elicited might tend to prove the party guilty of any crime;

(e) Right to confront and cross-examine witnesses;

(f) Right to testify and to compel other witnesses to attend and testify;

(g) Right to a speedy adjudication hearing; and

(h) Right to appeal and have a transcript or record of the proceedings for such purpose.

(2) The court shall have the discretion as to whether or not to appoint counsel for a person who is not a party to the proceeding. If counsel is appointed, failure of the party to maintain contact with his or her court-appointed counsel or to keep such counsel advised of the party's current address may result in the counsel being discharged by the court.

(3) After giving the parties the information prescribed in subsection (1) of this section, the court may accept an in-court admission, an answer of no contest, or a denial from any parent, custodian, or guardian as to all or any part of the allegations in the petition. The court shall ascertain a factual basis for an admission or an answer of no contest.

(4) In the case of a denial, the court shall allow a reasonable time for preparation if needed and then proceed to determine the question of whether the juvenile falls under the provisions of section 43-247 as alleged. After hearing the evidence, the court shall make a finding and adjudication to be entered on the records of the court as to whether the allegations in the petition have been proven by a preponderance of the evidence in cases under subdivision (3)(a) of section 43-247 or by clear and convincing evidence in proceedings to terminate parental rights. The court shall inquire as to whether any party believes an Indian child is involved in the proceedings prior to the advisement of rights pursuant to subsection (1) of this section. If an Indian child is involved, the standard of proof shall be in compliance with the Nebraska Indian Child Welfare Act, if applicable.

(5) If the court shall find that the allegations of the petition or motion have not been proven by the requisite standard of proof, it shall dismiss the case or motion. If the court sustains the petition or motion, it shall allow a reasonable time for preparation if needed and then proceed to inquire into the matter of the proper disposition to be made of the juvenile.

Source:Laws 1985, LB 447, § 23; Laws 1989, LB 22, § 3; Laws 2013, LB561, § 18; Laws 2015, LB566, § 1.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

1. Due Process

2. Miscellaneous

1. Due Process

A juvenile court should not permit an attorney to withdraw from representing a parent at a termination hearing for lack of communication unless the attorney shows that he or she has provided notice of an intent to withdraw or made diligent efforts to do so. Absent circumstances showing that a parent has avoided contact with his or her attorney, a juvenile court must respect the parent's due process right to representation by an attorney. And the court should consider whether withdrawal could be accomplished without a material adverse effect on the client's interests. In re Interest of Landon H., 287 Neb. 105, 841 N.W.2d 369 (2013).

If a parent has been afforded procedural due process at an adjudication hearing, allowing a parent who is incarcerated or otherwise confined in custody of a government to attend the adjudication is within the discretion of the trial court, whose decision will be upheld in the absence of an abuse of discretion. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

Adequate notice of the possibility of the termination of parental rights must be given in adjudication hearings before the juvenile court may accept an in-court admission, an answer of no contest, or a denial from a parent. A parent in a juvenile court case has the right to appointed counsel if unable to hire a lawyer. In re Interest of N.M. and J.M., 240 Neb. 690, 484 N.W.2d 77 (1992).

Eight-month delay between the time when the child is "temporarily" taken from the child's parent until an adjudication hearing is held cannot be condoned, even when the parties agree to repeated continuances. In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992).

To determine whether due process requires the assistance of counsel for the parent in a temporary detention proceeding under sections 43-247(3)(a) and 43-254, the court must weigh the interest of the parent, the interest of the State, and the risk of erroneous decision given the procedures in use. In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).

A father's due process rights were not violated where he was advised during the adjudication phase of the proceedings of his rights listed in this section and was advised of the nature of the juvenile court proceedings and possible consequences, including the possibility that his parental rights could ultimately be terminated, but he was not advised again during the termination of parental rights phase, nor was the court required to do so. In re Interest of Aaliyah M. et al., 21 Neb. App. 63, 837 N.W.2d 98 (2013).

A juvenile court need not necessarily advise a parent during the parent's initial appearance in court, or during an initial detention hearing, of the nature of the proceedings, of the parent's rights, or of the possible consequences after adjudication, pursuant to the statutory language. Instead, a juvenile court must provide this advisement prior to or at an adjudication hearing where a parent enters a plea to the allegations in the petition. In re Interest of Damien S., 19 Neb. App. 917, 815 N.W.2d 648 (2012).

An incarcerated father's due process rights were violated in a proceeding in which a motion was made to terminate his parental rights where he was not represented by counsel, he was not present at the adjudication and termination hearing, and he did not waive those rights, and the juvenile court otherwise failed to provide him an opportunity to refute or defend against the allegations of the petition, such as implementing procedures to afford him an opportunity to participate in the hearing, confront or cross-examine adverse witnesses, or present evidence on his behalf; although the juvenile court issued transport orders and a summons to enable the father to attend, the court not only took no further action upon receipt of the sheriff's request for a writ of habeas corpus rather than a transport order, but it also proceeded with the hearing without comment on the record as to either the father's or his attorney's absence. In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).

The trial court's failure to advise a mother of her rights, of the possible dispositions, or of the nature of juvenile court proceedings arising from the State's petition alleging that the mother inappropriately disciplined her 20-month-old child and that the child was without proper parental care through the mother's fault or habits violated the mother's due process rights, even though the mother vigorously defended against the charges. In re Interest of Billie B., 8 Neb. App. 791, 601 N.W.2d 799 (1999).

Failure to advise a party to a termination hearing of his or her rights as delineated in this section requires reversal of the order of termination. In re Interest of Joelyann H., 6 Neb. App. 472, 574 N.W.2d 185 (1998).

Failure of a court to provide the parties with explanations and warnings as mandated by this section results in a denial of due process. In re Interest of A.D.S. and A.D.S., 2 Neb. App. 469, 511 N.W.2d 208 (1994).

2. Miscellaneous

The lower standard of proof under subsection (3) of this section for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act, sections 43-1501 to 43-1516, does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006).

Juvenile courts do not need to conduct an inquiry as to the whereabouts of every respondent parent who fails to appear for a scheduled hearing. In most situations, the burden to notify the juvenile court of a parent's incarceration or confinement is properly placed on the parent or the parent's attorney. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

Subsection (1) of this section states in part that when a petition alleges a juvenile to be within the provisions of subsection (3)(a) of section 43-247 and the parent or custodian appears with or without counsel, the court shall inform the parties of the right to confront and cross-examine witnesses. Subsection (3) of this section provides that when adjudicating whether a juvenile is dependent or neglected within the purview of subsection (3)(a) of section 43-247, the State must establish its allegations by a preponderance of the evidence. In re Interest of Danielle D. et al., 257 Neb. 198, 595 N.W.2d 544 (1999).

A ruling refusing to permit the withdrawal of an answer of no contest filed pursuant to the provisions of this section is not a final, appealable order. In re Interest of C.D.A., 231 Neb. 267, 435 N.W.2d 681 (1989).

Burden of proof and standard of proof are interchangeable terms. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

43-280. Adjudication; effect; use of in-court statements.

No adjudication by the juvenile court upon the status of a juvenile shall be deemed a conviction nor shall the adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction. The adjudication and the evidence given in the court shall not operate to disqualify such juvenile in any future civil or military service application or appointment. Any admission, answer of no contest, confession, or statement made by the juvenile in court and admitted by the court, in a proceeding under section 43-279, shall be inadmissible against such juvenile in any criminal or civil proceeding but may be considered by a court as part of a presentence investigation involving a subsequent transaction.

Source:Laws 1981, LB 346, § 36; Laws 2023, LB50, § 22.

Cross References

Juvenile adjudication, inadmissible for purpose of attacking credibility of witness, see section 27-609.

43-281. Adjudication of jurisdiction; evaluation; restrictions on placement; copy of report or evaluation.

(1) Following an adjudication of jurisdiction and prior to final disposition, the court may provide for evaluation of a juvenile as provided in this section.

(2) If the adjudication of jurisdiction is not under subdivision (1), (2), (3)(b), or (4) of section 43-247, the court may place the juvenile with the Office of Juvenile Services or the Department of Health and Human Services for evaluation. The office or department shall arrange and pay for an appropriate evaluation if the office or department determines that there are no parental funds or private or public insurance available to pay for such evaluation.

(3)(a) If the adjudication of jurisdiction is under subdivision (1), (2), (3)(b), or (4) of section 43-247, the court may order an evaluation to be arranged by the Office of Probation Administration.

(b) For a juvenile in detention, the court shall order that such evaluation be completed and the juvenile returned to the court within twenty-one days after the evaluation.

(c) For a juvenile who is not in detention, the evaluation shall be completed and the juvenile returned to the court within thirty days.

(d) The physician, psychologist, licensed mental health practitioner, professional counselor holding a privilege to practice in Nebraska under the Licensed Professional Counselors Interstate Compact, licensed drug and alcohol counselor, or other provider responsible for completing the evaluation shall have up to ten days to complete the evaluation after receiving the referral authorizing the evaluation.

(4) A juvenile pending evaluation ordered under this section shall not reside in a detention facility at the time of the evaluation or while waiting for the completed evaluation to be returned to the court unless detention of such juvenile is a matter of immediate and urgent necessity for the protection of such juvenile or the person or property of another or if it appears that such juvenile is likely to flee the jurisdiction of the court.

(5) The court shall provide copies of predisposition reports and evaluations of the juvenile to the juvenile's attorney and the county attorney or city attorney prior to any hearing in which the report or evaluation will be relied upon.

Source:Laws 1981, LB 346, § 37; Laws 1982, LB 787, § 16; Laws 1994, LB 436, § 1; Laws 1998, LB 1073, § 24; Laws 2013, LB561, § 19; Laws 2014, LB464, § 18; Laws 2022, LB752, § 25; Laws 2024, LB1051, § 16.
Effective Date: July 19, 2024

Cross References

Licensed Professional Counselors Interstate Compact, see section 38-4201.

Annotations

The juvenile court cannot order a specific placement of a juvenile for the purposes of the evaluation authorized by this section. In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).

An order placing a juvenile in the Youth Development Center temporarily for the purpose of evaluation preliminary to a dispositional hearing is not a final order for the purposes of appeal. In re Interest of J.M.S., 218 Neb. 72, 352 N.W.2d 186 (1984).

43-282. Juvenile court; transfer case and records to court of domicile.

If a petition alleging a juvenile to be within the jurisdiction of the Nebraska Juvenile Code is filed in a county other than the county where the juvenile is presently living or domiciled, the court, at any time after adjudication and prior to final termination of jurisdiction, may transfer the proceedings to the county where the juvenile lives or is domiciled and the court having juvenile court jurisdiction therein shall thereafter have sole charge of such proceedings and full authority to enter any order it could have entered had the adjudication occurred therein.

All documents, social histories, and records, or certified copies thereof, on file with the court pertaining to the case shall accompany the transfer.

Source:Laws 1981, LB 346, § 38; Laws 1985, LB 447, § 24.

Annotations

Because venue is immaterial in juvenile proceedings, a court should not grant a motion to dismiss based on an allegation of improper venue. Pursuant to the statutory language, a juvenile court should first hold an adjudication hearing, and after the adjudication hearing, it should determine whether it would be proper to transfer the proceedings to a court in the county where the juvenile resides. In re Interest of Breana M., 18 Neb. App. 910, 795 N.W.2d 660 (2011).

This section allows an adjudication proceeding to be filed in any county and allows for discretionary transfer, after adjudication, to the county where the juvenile is living or domiciled. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011).

This section makes venue immaterial in addition to setting up a procedure for discretionary transfer. In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011).

43-283. Dispositional hearing; rules of evidence.

Strict rules of evidence shall not be applied at any dispositional hearing.

Source:Laws 1981, LB 346, § 39.

Annotations

This section is applicable at a hearing to determine who shall have custody of a juvenile pending an adjudication; thus, relaxed rules of evidence may be followed. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991).

Although strict rules of evidence do not apply at a dispositional hearing, a proceeding to terminate parental rights must employ fundamentally fair procedures satisfying the requirements of due process. In re Interest of Tabitha J., 5 Neb. App. 609, 561 N.W.2d 252 (1997).

43-283.01. Preserve and reunify the family; reasonable efforts; requirements.

(1) In determining whether reasonable efforts have been made to preserve and reunify the family and in making such reasonable efforts, the juvenile's health and safety are the paramount concern.

(2) Except as provided in subsections (4) and (5) of this section, reasonable efforts shall be made to preserve and reunify families prior to the placement of a juvenile in foster care to prevent or eliminate the need for removing the juvenile from the juvenile's home and to make it possible for a juvenile to safely return to the juvenile's home.

(3) If continuation of reasonable efforts to preserve and reunify the family is determined to be inconsistent with the permanency plan determined for the juvenile in accordance with a permanency hearing under section 43-1312, efforts shall be made to place the juvenile in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the juvenile.

(4) Reasonable efforts to preserve and reunify the family are not required if a court of competent jurisdiction has determined that:

(a) The parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse;

(b) The parent of the juvenile has (i) committed first or second degree murder to another child of the parent, (ii) committed voluntary manslaughter to another child of the parent, (iii) aided or abetted, attempted, conspired, or solicited to commit murder, or aided or abetted voluntary manslaughter of the juvenile or another child of the parent, (iv) committed a felony assault which results in serious bodily injury to the juvenile or another minor child of the parent, or (v) been convicted of felony sexual assault of the other parent of the juvenile under section 28-319.01 or 28-320.01 or a comparable crime in another state; or

(5) Except as otherwise provided in the Nebraska Indian Child Welfare Act, if the family includes a child who was conceived by the victim of a sexual assault and a biological parent is convicted of the crime under section 28-319 or 28-320 or a law in another jurisdiction similar to either section 28-319 or 28-320, the convicted biological parent of such child shall not be considered a part of the child's family for purposes of requiring reasonable efforts to preserve and reunify the family.

(6) If reasonable efforts to preserve and reunify the family are not required because of a court determination made under subsection (4) of this section, a permanency hearing, as provided in section 43-1312, shall be held for the juvenile within thirty days after the determination, reasonable efforts shall be made to place the juvenile in a timely manner in accordance with the permanency plan, and whatever steps are necessary to finalize the permanent placement of the juvenile shall be made.

(7) Reasonable efforts to place a juvenile for adoption or with a guardian may be made concurrently with reasonable efforts to preserve and reunify the family, but priority shall be given to preserving and reunifying the family as provided in this section.

Source:Laws 1998, LB 1041, § 24; Laws 2009, LB517, § 1; Laws 2017, LB289, § 17.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

1. Generally

2. Aggravated circumstances

1. Generally

A detention hearing is a parent's opportunity to be heard on the need for the removal and the satisfaction of the State's obligations under this section, and it is not optional when a child is detained for any significant period of time. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

A finding of a fact that excuses the requirement of reasonable efforts at reunification under subsection (4) of this section must be based on clear and convincing evidence. In re Interest of Jac'Quez N., 266 Neb. 782, 669 N.W.2d 429 (2003).

The plain language of this section contains no directive granting a parent or any other party the right to bring a motion requesting a separate hearing on the issue of reasonable efforts to preserve and reunify. The Legislature intended that the issue of reasonable efforts required under this section must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to section 43-254, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of section 43-292. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

Once a plan of reunification has been ordered to correct the conditions underlying an adjudication, the plan must be reasonably related to the objective of reuniting the parents with the children. In re Interest of Ethan M., 19 Neb. App. 259, 809 N.W.2d 804 (2011).

A "parent of the juvenile" means a biological parent or a stepparent when such stepparent is married to the custodial parent as of the filing of the petition; a custodial parent's live-in boyfriend or girlfriend is not a "parent of the juvenile" for purposes of this section. In re Interest of Ethan M., 15 Neb. App. 148, 723 N.W.2d 363 (2006).

Pursuant to subsection (6) of section 43-292, termination of parental rights requires a finding that following a determination that the juvenile is one as described in subsection (3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required under this section, under the direction of the court, have failed to correct the conditions leading to the determination. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

Pursuant to subsection (4)(b) of this section, clear and convincing evidence that the parent of the juvenile has committed first or second degree murder of another child of the parent, or has committed voluntary manslaughter of another child of the parent, excuses the Department of Health and Human Services from the requirement to make reasonable efforts to reunify the family. In re Interest of Anthony V., 12 Neb. App. 567, 680 N.W.2d 221 (2004).

A finding of "felony child abuse" does not satisfy the requirements of subsection (4)(b)(iv) of this section, and there is no crime called "felony child abuse" in Nebraska. In re Interest of Janet J., 12 Neb. App. 42, 666 N.W.2d 741 (2003).

Where the State removes a child from the family, this section requires the State to make reasonable efforts to preserve and reunify the family, and if properly raised, a parent is entitled to a ruling on whether the State has complied with the legislative mandate of this section. In re Interest of DeWayne G. & Devon G., 10 Neb. App. 177, 625 N.W.2d 849 (2001).

2. Aggravated circumstances

The term "aggravated circumstances," as used in subsection (4)(a) of this section, embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child and would place the child in a position of an unreasonable risk to be reabused. In re Interest of Jac'Quez N., 266 Neb. 782, 669 N.W.2d 429 (2003).

The term "aggravated circumstances" embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child and would place the child in a position of an unreasonable risk to be reabused. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

43-284. Juvenile in need of assistance or special supervision; care and custody; payments for support; removal from home; restrictions.

(1) When any juvenile is adjudged to be under subdivision (3), (4), or (8) of section 43-247, the court may permit such juvenile to remain in his or her own home subject to supervision or may make an order committing the juvenile to:

(a) The care of some suitable institution;

(b) Inpatient or outpatient treatment at a mental health facility or mental health program;

(d) The care of some association willing to receive the juvenile embracing in its objects the purpose of caring for or obtaining homes for such juveniles, which association shall have been accredited as provided in section 43-296;

(e) The care of a suitable family; or

(f) The care and custody of the Department of Health and Human Services, except that a juvenile who is adjudicated to be a juvenile described in subdivision (3)(b) or (4) of section 43-247 shall not be committed to the care and custody or supervision of the department.

(2)(a) Under subdivision (1)(a), (b), (c), (d), or (e) of this section, upon a determination by the court that there are no parental, private, or other public funds available for the care, custody, education, and maintenance of a juvenile, the court may order a reasonable sum for the care, custody, education, and maintenance of the juvenile to be paid out of a fund which shall be appropriated annually by the county where the petition is filed until suitable provisions may be made for the juvenile without such payment.

(b) The amount to be paid by a county for education pursuant to this section shall not exceed the average cost for education of a public school student in the county in which the juvenile is placed and shall be paid only for education in kindergarten through grade twelve.

(3) The court may enter a dispositional order removing a juvenile from his or her home upon a written determination that continuation in the home would be contrary to the health, safety, or welfare of such juvenile and that reasonable efforts to preserve and reunify the family have been made if required under section 43-283.01.

Source:Laws 1981, LB 346, § 40; Laws 1982, LB 353, § 1; Laws 1987, LB 635, § 3; Laws 1987, LB 638, § 5; Laws 1989, LB 182, § 10; Laws 1996, LB 1044, § 130; Laws 1997, LB 622, § 72; Laws 1998, LB 1041, § 25; Laws 2001, LB 23, § 2; Laws 2013, LB561, § 20; Laws 2024, LB1051, § 17.
Effective Date: July 19, 2024

Cross References

Child removed from home, investigation and examination required, see section 43-1311.

Annotations

The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to this section, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to section 43-254, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of section 43-292. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

The terms "care" and "custody" as used in this section are not synonymous. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).

This statutory provision, by its liberal use of the word "may," authorizes the juvenile court to exercise broad discretion in its disposition of children who have been found to be abused or neglected. In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996).

This section does not authorize the Department of Social Services to determine or place restrictions on parental visitation rights; rather, such rights are matters for judicial determination. In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990).

Disposition of juveniles adjudged within section 43-247 is pursuant to sections 43-283 to 43-2,101. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).

The dispositional statutes (sections 43-283 to 43-2,101) do not violate the equal protection provisions of either the U.S. Constitution or the Constitution of the State of Nebraska, because they validly classify status offenders, who do not violate the state's criminal law, on the one hand, and juvenile criminal offenders, on the other, who violate the state's criminal law by their own volitional acts. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).

When a juvenile is adjudicated under subsection (3) of section 43-247, the juvenile court may permit the juvenile to remain in his or her own home subject to supervision or may make an order committing the juvenile to the care and custody of the Department of Health and Human Services. In re Interest of Alex F. & Tony F., 23 Neb. App. 195, 870 N.W.2d 150 (2015).

The juvenile court may permit a juvenile adjudged to be under section 43-247(3) to remain in his or her own home subject to supervision or may make an order committing the juvenile to the care of some suitable institution, reputable citizen, or suitable family or to the care and custody of the Department of Health and Human Services. In re Interest of Crystal T. et al., 7 Neb. App. 921, 586 N.W.2d 479 (1998).

43-284.01. Juvenile voluntarily relinquished; custody; alternative disposition; effect.

Any juvenile adjudged to be under subdivision (7) of section 43-247 shall remain in the custody of the Department of Health and Human Services or the licensed child placement agency to whom the juvenile has been relinquished unless the court finds by clear and convincing evidence that the best interests of the juvenile require that an alternative disposition be made. If the court makes such finding, then alternative disposition may be made as provided under section 43-284. Such alternative disposition shall relieve the department or licensed child placement agency of all responsibility with regard to such juvenile.

Source:Laws 1985, LB 447, § 9; Laws 1989, LB 182, § 11; Laws 1996, LB 1044, § 131; Laws 2013, LB561, § 21.

43-284.02. Ward of the department; appointment of guardian; payments allowed.

The Department of Health and Human Services may make payments as needed on behalf of a child who has been a ward of the department after the appointment of a guardian for the child. Such payments to the guardian may include maintenance costs, medical and surgical expenses, and other costs incidental to the care of the child. All such payments shall terminate on or before the child's nineteenth birthday unless the child is eligible for extended guardianship assistance and medical care from the department pursuant to section 43-4511. The child under guardianship shall be a child for whom the guardianship would not be possible without the financial aid provided under this section.

The Department of Health and Human Services shall adopt and promulgate rules and regulations for the administration of this section.

Source:Laws 1986, LB 600, § 14; Laws 1996, LB 1044, § 132; Laws 2007, LB296, § 108; Laws 2014, LB853, § 22; Laws 2014, LB908, § 4; Laws 2015, LB243, § 10.

43-285. Care of juvenile; duties; authority; placement plan and report; when; court proceedings; standing; Foster Care Review Office or local foster care review board; participation authorized; immunity.

(1) When the court awards a juvenile to the care of the Department of Health and Human Services, an association, or an individual in accordance with the Nebraska Juvenile Code, the juvenile shall, unless otherwise ordered, become a ward and be subject to the legal custody and care of the department, association, or individual to whose care he or she is committed. Any such association and the department shall have authority, by and with the assent of the court, to determine the care, placement, medical services, psychiatric services, training, and expenditures on behalf of each juvenile committed to it. Any such association and the department shall be responsible for applying for any health insurance available to the juvenile, including, but not limited to, medical assistance under the Medical Assistance Act. Such custody and care shall not include the guardianship of any estate of the juvenile.

(2)(a) Following an adjudication hearing at which a juvenile is adjudged to be under subdivision (3)(a) or (c) of section 43-247, the court may order the department to prepare and file with the court a proposed plan for the care, placement, services, and permanency which are to be provided to such juvenile and his or her family. The health and safety of the juvenile shall be the paramount concern in the proposed plan.

(b) The department shall provide opportunities for the child, in an age or developmentally appropriate manner, to be consulted in the development of his or her plan as provided in the Nebraska Strengthening Families Act.

(c) The department shall include in the plan for a child who is fourteen years of age or older and subject to the legal care and custody of the department a written independent living transition proposal which meets the requirements of section 43-1311.03 and, for eligible children, the Young Adult Bridge to Independence Act. The juvenile court shall provide a copy of the plan to all interested parties before the hearing. The court may approve the plan, modify the plan, order that an alternative plan be developed, or implement another plan that is in the child's best interests. In its order the court shall include a finding regarding the appropriateness of the programs and services described in the proposal designed to help the child prepare for the transition from foster care to a successful adulthood. The court shall also ask the child, in an age or developmentally appropriate manner, if he or she participated in the development of his or her plan and make a finding regarding the child's participation in the development of his or her plan as provided in the Nebraska Strengthening Families Act. Rules of evidence shall not apply at the dispositional hearing when the court considers the plan that has been presented.

(d) The last court hearing before jurisdiction pursuant to subdivision (3)(a) of section 43-247 is terminated for a child who is sixteen years of age or older or pursuant to subdivision (8) of section 43-247 for a child whose guardianship or state-funded adoption assistance agreement was disrupted or terminated after he or she had attained the age of sixteen years shall be called the independence hearing. In addition to other matters and requirements to be addressed at this hearing, the independence hearing shall address the child's future goals and plans and access to services and support for the transition from foster care to adulthood consistent with section 43-1311.03 and the Young Adult Bridge to Independence Act. The child shall not be required to attend the independence hearing, but efforts shall be made to encourage and enable the child's attendance if the child wishes to attend, including scheduling the hearing at a time that permits the child's attendance. An independence coordinator as provided in section 43-4506 shall attend the hearing if reasonably practicable, but the department is not required to have legal counsel present. At the independence hearing, the court shall advise the child about the bridge to independence program, including, if applicable, the right of young adults in the bridge to independence program to request a court-appointed, client-directed attorney under subsection (1) of section 43-4510 and the benefits and role of such attorney and to request additional permanency review hearings in the bridge to independence program under subsection (5) of section 43-4508 and how to request such a hearing. The court shall also advise the child, if applicable, of the rights he or she is giving up if he or she chooses not to participate in the bridge to independence program and the option to enter such program at any time between nineteen and twenty-one years of age if the child meets the eligibility requirements of section 43-4504. The department shall present information to the court regarding other community resources that may benefit the child, specifically information regarding state programs established pursuant to 42 U.S.C. 677. The court shall also make a finding as to whether the child has received the documents as required by subsection (9) of section 43-1311.03.

(3)(a) Within thirty days after an order awarding a juvenile to the care of the department, an association, or an individual and until the juvenile reaches the age of majority, the department, association, or individual shall file with the court a report stating the location of the juvenile's placement and the needs of the juvenile in order to effectuate the purposes of subdivision (1) of section 43-246. The department, association, or individual shall file a report with the court once every six months or at shorter intervals if ordered by the court or deemed appropriate by the department, association, or individual. Every six months, the report shall provide an updated statement regarding the eligibility of the juvenile for health insurance, including, but not limited to, medical assistance under the Medical Assistance Act. The department shall also concurrently file a written sibling placement report as described in subsection (3) of section 43-1311.02 at these times.

(b) The department, association, or individual shall file a report and notice of placement change with the court and shall send copies of the notice to all interested parties, including all of the child's siblings that are known to the department and, if the child is of school age, the school where the child is enrolled, at least seven days before the placement of the juvenile is changed from what the court originally considered to be a suitable family home or institution to some other custodial situation in order to effectuate the purposes of subdivision (1) of section 43-246. If a determination is made that it is not in the child's best interest to remain in the same school after a placement change, notice of placement change shall also be sent to the new school where the child will be enrolled. The department, association, or individual shall afford a parent or an adult sibling the option of refusing to receive such notifications. The court, on its own motion or upon the filing of an objection to the change by an interested party, may order a hearing to review such a change in placement and may order that the change be stayed until the completion of the hearing. Nothing in this section shall prevent the court on an ex parte basis from approving an immediate change in placement upon good cause shown. The department may make an immediate change in placement without court approval only if the juvenile is in a harmful or dangerous situation or when the foster parents request that the juvenile be removed from their home. Approval of the court shall be sought within twenty-four hours after making the change in placement or as soon thereafter as possible. Within twenty-four hours after court approval of the emergency placement change, the department, association, or individual shall provide notice of the placement change to all interested parties, including all of the child's siblings that are known to the department, and, if the child is of school age, the school where the child is enrolled and the new school where the child will be enrolled.

(c) The department shall provide the juvenile's guardian ad litem with a copy of any report filed with the court by the department pursuant to this subsection.

(4) The court shall also hold a permanency hearing if required under section 43-1312.

(5) When the court awards a juvenile to the care of the department, an association, or an individual, then the department, association, or individual shall have standing as a party to file any pleading or motion, to be heard by the court with regard to such filings, and to be granted any review or relief requested in such filings consistent with the Nebraska Juvenile Code.

(6) Whenever a juvenile is in a foster care placement as defined in section 43-1301, the Foster Care Review Office or the designated local foster care review board may participate in proceedings concerning the juvenile as provided in section 43-1313 and notice shall be given as provided in section 43-1314.

(7) Any written findings or recommendations of the Foster Care Review Office or the designated local foster care review board with regard to a juvenile in a foster care placement submitted to a court having jurisdiction over such juvenile shall be admissible in any proceeding concerning such juvenile if such findings or recommendations have been provided to all other parties of record.

(8) The executive director and any agent or employee of the Foster Care Review Office or any member of any local foster care review board participating in an investigation or making any report pursuant to the Foster Care Review Act or participating in a judicial proceeding pursuant to this section shall be immune from any civil liability that would otherwise be incurred except for false statements negligently made.

Cross References

Foster Care Review Act, see section 43-1318.

Medical Assistance Act, see section 68-901.

Nebraska Strengthening Families Act, see section 43-4701.

Young Adult Bridge to Independence Act, see section 43-4501.

Annotations

1. Authority of the court

2. Termination of parental rights

3. Standing

4. Expedited review

5. Miscellaneous

1. Authority of the court

A juvenile court may not, under subsection (2) of this section, change a juvenile's permanency plan from family reunification to guardianship unless there has been a prior adjudication of the juvenile under section 43-247(3)(a), which adjudication is a requirement under section 43-1312.01 for establishing a juvenile guardianship. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

Under subsection (2) of this section, once a child has been adjudicated under section 43-247(3), the juvenile court ultimately decides where a child should be placed. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).

Pursuant to this section, the juvenile court has the authority to order the Department of Health and Human Services to remove a case manager if the facts and circumstances require a change for the best interests of the juvenile. In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d 651 (2006).

The phrase, "by and with the assent of the court," implicitly gives the juvenile court the authority to dissent from a determination made by the Department of Health and Human Services. In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d 651 (2006).

Pursuant to subsection (3) of this section, when a separate juvenile court or county court sitting as a juvenile court awards custody of a minor to the Department of Health and Human Services, the court has authority to award custody to a family the department has designated as suitable guardians without resorting to a proceeding under section 30-2608. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000).

Under subsection (2) of this section, following the adjudication of a juvenile, the juvenile court may order the Department of Health and Human Services to prepare and file with the court a proposed plan for the care, placement, services, and permanency which are to be provided to such juvenile and his or her family, and the court may approve the plan, modify the plan, order an alternative plan, or implement another plan that is in the juvenile's best interests. In re Interest of Alex F. & Tony F., 23 Neb. App. 195, 870 N.W.2d 150 (2015).

Under subsection (3) of this section, the juvenile court is authorized to establish guardianships for juveniles in the custody of the Department of Health and Human Services without resorting to a proceeding under the probate code. In re Interest of Brianna B., 21 Neb. App. 657, 842 N.W.2d 191 (2014).

In the exercise of its jurisdiction over a custody modification proceeding, a county court sitting as a juvenile court cannot permanently modify child custody through the mere adoption of a case plan pursuant to subsection (2) of this section. In re Interest of Ethan M., 18 Neb. App. 63, 774 N.W.2d 766 (2009).

In order for a court to disapprove of a plan proposed by the Department of Health and Human Services under this section, a party must prove by a preponderance of the evidence that the department's plan is not in the child's best interests. In re Interest of A.W. et al., 16 Neb. App. 210, 742 N.W.2d 250 (2007).

Subsection (1) of this section gives the court the power to assent and, by implication, to dissent from the placement and other decisions of the Nebraska Department of Health and Human Services, as well as of other entities to whom the court might commit the care of a minor. In re Interest of Veronica H., 14 Neb. App. 316, 707 N.W.2d 29 (2005).

2. Termination of parental rights

Because statutory provisions do not overcome constitutional rights, the provisions of subsection (6) of this section do not apply to proceedings brought under the Nebraska Juvenile Code to terminate parental rights. Despite subsection (6) of this section, the hearsay report of the State Foster Care Review Board is not necessarily admissible in a hearing on termination of parental rights. In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998).

Where a proceeding to obtain the juvenile court's assent to the medical services determined by the department under subsection (1) of this section results in the functional equivalent of a proceeding to terminate parental rights, the same due process must be afforded in the assent proceeding as is required in a proceeding to terminate parental rights. In re Interest of Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997).

Where the department's determination under subsection (1) of this section is likely to result in the juvenile's death, the juvenile court's assent is the functional equivalent of a judgment terminating parental rights. In re Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997).

3. Standing

Pursuant to subsection (4) of this section (now subsection (5) of this section), the Department of Social Services acquires standing as a party only after a juvenile has been placed in its care. In re Interest of Archie C., 250 Neb. 123, 547 N.W.2d 913 (1996).

Foster parents are interested parties for the purposes of this section. Foster parents have standing to participate in foster care placement review hearings. In re Interest of Jorius G. & Cheralee G., 249 Neb. 892, 546 N.W.2d 796 (1996).

This section provides standing for the Department of Social Services to file any pleading or motion or to seek review or relief, when the juvenile court orders a juvenile to the care of the department. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).

4. Expedited review

Standing alone, subsection (2) of this section appears to entitle the Department of Social Services to obtain an expedited review in any case; however, its reach is limited by the requirements set forth in sections 43-287.01 and 43-287.03, which require the application of a disjunctive test: First, the order must implement a different plan than that proposed by the department. Second, there must exist a belief in the department that the court-ordered plan is not in the best interests of the juvenile. Where this test is met, expedited review is the sole avenue of review available to the department. In re Interest of M.J.B., 242 Neb. 671, 496 N.W.2d 495 (1993).

Pursuant to subsection (3) of this section, although the language of this section appears to authorize an expedited review in any case, its reach is limited by the requirements set forth in sections 43-287.01 and 43-287.03. In re Interest of Tanisha P. et al., 9 Neb. App. 344, 611 N.W.2d 418 (2000).

5. Miscellaneous

With the passage of 2011 Neb. Laws, L.B. 648, the Nebraska Legislature shifted the burden of proof to the State to show that the Department of Health and Human Services' proposed plan for a juvenile's care was in the juvenile's best interests. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).

The terms "care" and "custody" as used in this section are not synonymous. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).

A dispositional order in which a juvenile court declines to order a rehabilitation plan for parents of a child adjudicated under section 43-247(3)(a) is a final, appealable order. A juvenile court is not required to order or implement a rehabilitation plan for the parent of a child adjudicated under section 43-247(3)(a) if the plan has very little chance of success and is not in the best interests of the child. Where a child's substantial medical needs resulting from injury caused by parental abuse necessitated 24-hour daily nursing care for the child, the juvenile court did not err in accepting recommendation of the Department of Health and Human Services that no rehabilitation plan be implemented to reunite a child with his or her parents. In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).

Pursuant to subsection (1) of this section, deciding whether to remove one from life support measures and whether to resuscitate one constitute medical services. In re Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997).

When the Department of Social Services has custody of a child, the department retains authority similar to a guardian's authority. In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990).

The provision of this section which provides that the "Department of Social Services shall have the authority to determine the care, placement, medical services, psychiatric services, training, and expenditures on behalf of each child committed to it" by a juvenile court, does not contravene the distribution of powers clause contained in Neb. Const., art. II, sec. 1. In re Interest of G.B., M.B., and T.B., 227 Neb. 512, 418 N.W.2d 258 (1988).

The State has the burden of proving that a case plan proposed by the Department of Health and Human Services is in the child's best interests. In re Interest of Ethan M., 19 Neb. App. 259, 809 N.W.2d 804 (2011).

When the court awards a juvenile to the Department of Health and Human Services, an association, or an individual in accordance with the Nebraska Juvenile Code, the juvenile shall, unless otherwise ordered, become a ward and be subject to the guardianship of the department, association, or individual to whose care he or she is committed. In re Interest of Eric O. and Shane O., 9 Neb. App. 676, 617 N.W.2d 824 (2000).

This section gives the court the power to assent and, by implication, to dissent from the placement and other decisions of the Department of Health and Human Services, as well as of other entities to whom the court might commit the care of a minor. This section indicates the Legislature's intent to remove from the Department of Health and Human Services the complete control of a minor whose care is given to the department under the Nebraska Juvenile Code. In re Interest of Crystal T. et al., 7 Neb. App. 921, 586 N.W.2d 479 (1998).

A juvenile court may not delegate to the Department of Social Services or any other third party the authority to determine the time, manner, and extent of parental visitation. In re Interest of Teela H., 3 Neb. App. 604, 529 N.W.2d 134 (1995).

43-286. Juvenile violator or juvenile in need of special supervision; disposition; violation of probation, supervision, or court order; procedure; discharge; procedure; notice; hearing; individualized reentry plan.

(1) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), or (4) of section 43-247:

(a) The court may continue the dispositional portion of the hearing, from time to time upon such terms and conditions as the court may prescribe, including an order of restitution of any property stolen or damaged or an order requiring the juvenile to participate in restorative justice programs or community service programs, if such order is in the interest of the juvenile's reformation or rehabilitation, and, subject to the further order of the court, may:

(i) Place the juvenile on probation subject to the supervision of a probation officer; or

(ii) Permit the juvenile to remain in his or her own home or be placed in a suitable family home or institution, subject to the supervision of the probation officer;

(b) When it is alleged that the juvenile has exhausted all levels of probation supervision and options for community-based services and section 43-251.01 has been satisfied, a motion for commitment to a youth rehabilitation and treatment center may be filed and proceedings held as follows:

(i) The motion shall set forth specific factual allegations that support the motion and a copy of such motion shall be served on all persons required to be served by sections 43-262 to 43-267;

(ii) The Office of Juvenile Services shall be served with a copy of such motion and shall be a party to the case for all matters related to the juvenile's commitment to, placement with, or discharge from the Office of Juvenile Services; and

(iii) The juvenile shall be entitled to a hearing before the court to determine the validity of the allegations. At such hearing the burden is upon the state by a preponderance of the evidence to show that:

(A) All levels of probation supervision have been exhausted;

(B) All options for community-based services have been exhausted; and

(C) Placement at a youth rehabilitation and treatment center is a matter of immediate and urgent necessity for the protection of the juvenile or the person or property of another or if it appears that such juvenile is likely to flee the jurisdiction of the court;

(c) After the hearing, the court may, as a condition of an order of intensive supervised probation, commit such juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center operated in compliance with state law. Upon commitment by the court to the Office of Juvenile Services, the court shall immediately notify the Office of Juvenile Services of the commitment. Intensive supervised probation for purposes of this subdivision means that the Office of Juvenile Services shall be responsible for the care and custody of the juvenile until the Office of Juvenile Services discharges the juvenile from commitment to the Office of Juvenile Services. Upon discharge of the juvenile, the court shall hold a review hearing on the conditions of probation and enter any order allowed under subdivision (1)(a) of this section;

(d) The Office of Juvenile Services shall notify those required to be served by sections 43-262 to 43-267, all interested parties, and the committing court of the pending discharge of a juvenile from the youth rehabilitation and treatment center sixty days prior to discharge and again in every case not less than thirty days prior to discharge. Upon notice of pending discharge by the Office of Juvenile Services, the court shall set a continued disposition hearing in anticipation of reentry. The Office of Juvenile Services shall work in collaboration with the Office of Probation Administration in developing an individualized reentry plan for the juvenile as provided in section 43-425. The Office of Juvenile Services shall provide a copy of the individualized reentry plan to the juvenile, the juvenile's attorney, and the county attorney or city attorney prior to the continued disposition hearing. At the continued disposition hearing, the court shall review and approve or modify the individualized reentry plan, place the juvenile under probation supervision, and enter any other order allowed by law. No hearing is required if all interested parties stipulate to the individualized reentry plan by signed motion. In such a case, the court shall approve the conditions of probation, approve the individualized reentry plan, and place the juvenile under probation supervision; and

(e) The Office of Juvenile Services is responsible for transportation of the juvenile to and from the youth rehabilitation and treatment center. The Office of Juvenile Services may contract for such services. A plan for a juvenile's transport to return to the community shall be a part of the individualized reentry plan. The Office of Juvenile Services may approve family to provide such transport when specified in the individualized reentry plan.

(2) When any juvenile is found by the court to be a juvenile described in subdivision (3)(b) of section 43-247, the court may enter such order as it is empowered to enter under subdivision (1)(a) of this section.

(3) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, the court may order the juvenile to be assessed for referral to participate in a restorative justice program. Factors that the judge may consider for such referral include, but are not limited to: The juvenile's age, intellectual capacity, and living environment; the ages of others who were part of the offense; the age and capacity of the victim; and the nature of the case.

(4) When a juvenile is placed on probation and a probation officer has reasonable cause to believe that such juvenile has committed a violation of a condition of his or her probation, the probation officer shall take appropriate measures as provided in section 43-286.01.

(5)(a) When a juvenile is placed on probation or under the supervision of the court and it is alleged that the juvenile is again a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, a petition may be filed and the same procedure followed and rights given at a hearing on the original petition. If an adjudication is made that the allegations of the petition are true, the court may make any disposition authorized by this section for such adjudications and the county attorney may file a motion to revoke the juvenile's probation.

(b) When a juvenile is placed on probation or under the supervision of the court for conduct under subdivision (1), (2), (3)(b), or (4) of section 43-247 and it is alleged that the juvenile has violated a term of probation or supervision or that the juvenile has violated an order of the court, a motion to revoke probation or supervision or to change the disposition may be filed and proceedings held as follows:

(i) The motion shall set forth specific factual allegations of the alleged violations and a copy of such motion shall be served on all persons required to be served by sections 43-262 to 43-267;

(ii) The juvenile shall be entitled to a hearing before the court to determine the validity of the allegations. At such hearing the juvenile shall be entitled to those rights relating to counsel provided by section 43-272 and those rights relating to detention provided by sections 43-254 to 43-256. The juvenile shall also be entitled to speak and present documents, witnesses, or other evidence on his or her own behalf. He or she may confront persons who have given adverse information concerning the alleged violations, may cross-examine such persons, and may show that he or she did not violate the conditions of his or her probation or supervision or an order of the court or, if he or she did, that mitigating circumstances suggest that the violation does not warrant revocation of probation or supervision or a change of disposition. The hearing shall be held within a reasonable time after the juvenile is taken into custody;

(iii) The hearing shall be conducted in an informal manner and shall be flexible enough to consider evidence, including letters, affidavits, and other material, that would not be admissible in an adversarial criminal trial;

(iv) The juvenile shall not be confined, detained, or otherwise significantly deprived of his or her liberty pursuant to the filing of a motion described in this section unless the requirements of subdivision (5) of section 43-251.01 and section 43-260.01 have been met. In all cases when the requirements of subdivision (5) of section 43-251.01 and section 43-260.01 have been met and the juvenile is confined, detained, or otherwise significantly deprived of his or her liberty as a result of his or her alleged violation of probation, supervision, or a court order, the juvenile shall be given a preliminary hearing. If, as a result of such preliminary hearing, probable cause is found to exist, the juvenile shall be entitled to a hearing before the court in accordance with this subsection;

(v) If the juvenile is found by the court to have violated the terms of his or her probation or supervision or an order of the court, the court may modify the terms and conditions of the probation, supervision, or other court order, extend the period of probation, supervision, or other court order, or enter any order of disposition that could have been made at the time the original order was entered; and

(vi) In cases when the court revokes probation, supervision, or other court order, it shall enter a written statement as to the evidence relied on and the reasons for revocation.

(6)(a) Except as provided in subdivision (6)(b) of this section, the court shall not change a disposition unless the court finds that the juvenile has violated a term or condition of probation or supervision or an order of the court and the procedures in subdivision (5)(b) of this section have been satisfied.

(b) Upon motion of the juvenile, the court may modify the terms or conditions of probation or supervision or modify a dispositional order if:

(i) All parties stipulate to the particular modification; and

(ii) The juvenile has consulted with counsel or has waived counsel. Any waiver must be particular to the modification and shall comply with section 43-3102.

(7) Costs incurred on behalf of a juvenile under this section shall be paid as provided in section 43-290.01.

(8) When any juvenile is adjudicated to be a juvenile described in subdivision (4) of section 43-247, the juvenile court shall within thirty days of adjudication transmit to the Director of Motor Vehicles an abstract of the court record of adjudication.

Source:Laws 1981, LB 346, § 42; Laws 1982, LB 787, § 18; Laws 1987, LB 638, § 6; Laws 1989, LB 182, § 13; Laws 1994, LB 988, § 21; Laws 1996, LB 1044, § 134; Laws 1998, LB 1073, § 26; Laws 2000, LB 1167, § 21; Laws 2011, LB463, § 4; Laws 2012, LB972, § 3; Laws 2013, LB561, § 23; Laws 2014, LB464, § 20; Laws 2017, LB8, § 2; Laws 2018, LB670, § 7; Laws 2019, LB595, § 31; Laws 2020, LB1148, § 10; Laws 2023, LB157, § 13.

Cross References

Juvenile probation officers, appointment, see section 29-2253.

Placements and commitments, restrictions, see section 43-251.01.

Annotations

1. Probation

2. Youth rehabilitation and treatment center

3. Restitution

4. Equal protection

5. Miscellaneous

1. Probation

When the State withdrew its motion to revoke probation prior to the motion's being heard, the juvenile court lacked authority to extend the juvenile's probation and to supply an additional condition of probation. In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018).

A juvenile court retains the authority to place a juvenile on probation under this section even if that juvenile has been previously placed with the Office of Juvenile Services. In re Interest of Charlicia H., 283 Neb. 362, 809 N.W.2d 274 (2012).

This section does not authorize the juvenile court to impose confinement as a part of an order of probation. In re Interest of Dustin S., 276 Neb. 635, 756 N.W.2d 277 (2008).

Juvenile court may not place a juvenile on probation or exercise any of its other options for disposition and at the same time continue the dispositional hearing. In re Interest of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008).

In the absence of an order revoking probation, a juvenile court has no obligation to comply with former subsection (4)(f) of this section. In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).

This section does not allow the juvenile court to place a juvenile on probation or exercise any of its other options under the former subsections (1) and (2) and at the same time continue the dispositional hearing. Subsection (4) outlines the procedures which must be followed when a court revokes probation, revokes supervision, or otherwise changes the juvenile's disposition, and the former subsection (4)(f) describes more particularly the procedures which must be followed when a court revokes probation. In re Interest of Torrey B., 6 Neb. App. 658, 577 N.W.2d 310 (1998).

There is no provision in either this section or section 43-287 that grants the juvenile court the authority to place a juvenile on probation subject to the supervision of the Department of Social Services. In re Interest of Robin C., 3 Neb. App. 936, 535 N.W.2d 831 (1995).

The written statement requirement contained in former subsection (4)(f) of this section is satisfied if the judge's oral statements appearing in the bill of exceptions from the revocation hearing, as well as in the revocation order, when taken together, reveal the evidence relied upon and reasons for the revocation. In re Interest of Thomas W., 3 Neb. App. 704, 530 N.W.2d 291 (1995).

2. Youth rehabilitation and treatment center

Before a juvenile court can commit a juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center, the Office of Probation Administration must review and consider thoroughly any reliable alternatives to that commitment and provide the court with a report that supports one of two conclusions: (1) There are untried conditions of probation or community-based services that have a reasonable possibility for success or (2) all levels of probation and options for community-based services have been studied thoroughly and none are feasible. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

In considering whether the State has shown that a juvenile should be placed at a youth rehabilitation and treatment center, a juvenile court is not required to repeat measures that were previously unsuccessful. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

Under subsection (1) of this section, the State can file a motion to commit a juvenile to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center at only three points in a delinquency proceeding: (1) before a court enters an original disposition, (2) before a court enters a new disposition following a new adjudication, and (3) before a court enters a new disposition following a motion to revoke probation or court supervision. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

When a juvenile court has already entered a disposition under subdivision (1)(a) of this section, a commitment to the Office of Juvenile Services under subdivision (1)(b) of this section must be consistent with the procedures for a new disposition under subsection (5) of this section. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

A juvenile court need not ensure that every conceivable probationary condition has been tried and failed before it may place a juvenile at a youth rehabilitation and treatment center. Nor does this section require that supervisory conditions of a juvenile previously classified as a neglect case under section 43-247(3)(a) must "start over" when the matter becomes a delinquency case and subject to the Office of Juvenile Services. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

The Legislature intended the placement of a juvenile at a youth rehabilitation and treatment center to be a last resort. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

This section does not require repetition of ineffective measures or require the Office of Juvenile Services to provide services that have already proved to be unsuccessful. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

This section requires that before a juvenile is placed in a youth rehabilitation and treatment center, the Office of Probation Administration must review and consider thoroughly what would be a reliable alternative to commitment at a youth rehabilitation and treatment center. Upon reviewing the juvenile's file and record, the Office of Probation Administration shall provide the court with a report stating whether any such untried conditions of probation or community based services have a reasonable possibility for success or that all levels of probation and options for community based services have been studied thoroughly and that none are feasible. In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

A juvenile court does not have jurisdiction over the Office of Juvenile Services in placing, managing, or discharging a juvenile committed to a youth rehabilitation treatment center, even though the juvenile court retains jurisdiction of the juvenile. On a motion to revoke probation, the court must advise the juvenile and his or her parent or guardian of their right to retain counsel, inquire of the juvenile and his or her parent or guardian as to whether they desire to retain counsel, and inform the juvenile and his or her parent or guardian of the juvenile's right to counsel at county expense if none of them is able to afford counsel. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).

3. Restitution

The language of this section contemplates a nonexhaustive list of examples of terms and conditions that a juvenile court may order, and thus, the juvenile court had the authority to order restitution for medical expenses as long as such order was in the interest of the juvenile's reformation or rehabilitation. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

The reference to restitution for stolen or damaged property is merely one example of an offense for which the juvenile court could order restitution. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

This section does not limit the types of restitution a juvenile court may order to only restitution for property stolen or damaged. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

A juvenile court may use any rational method of fixing the amount of restitution, so long as the amount is rationally related to the proofs offered at the dispositional hearing, and the amount is consistent with the purposes of education, treatment, rehabilitation, and the juvenile's ability to pay. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).

When a juvenile court enters an order of restitution under subsection (1)(a) of this section, the court should consider, among other factors, the juvenile's earning ability, employment status, financial resources, and other obligations. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).

4. Equal protection

Since juvenile offenders and adult offenders are not similarly situated, there is no deprivation of equal protection when a juvenile adjudged to be a juvenile within the meaning of section 43-247(1), (2), or (4) is, pursuant to this section, confined for a longer period than an adult convicted of the same offense could be incarcerated. In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989).

5. Miscellaneous

Once a juvenile court has entered a delinquency disposition under this section, it is plain error for the court to change that disposition when the State has not complied with the procedural requirements under subsection (5) of this section:unless the record shows that the juvenile was not denied any of the statutory procedural protections that the juvenile would have received if the State had followed the proper procedures. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

When the State files successive motions to change a juvenile's disposition under this section, a juvenile court can compare the facts as they existed when it entered a previous order to new facts arising after that order to determine whether a change in circumstances warrants a different decision. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

As used in subsection (1)(a)(iii) of this section, the terms "supervision" and "custody" are not synonymous. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).

A juvenile adjudged to be a juvenile within the meaning of section 43-247(3)(b), i.e., a status offender, may not be committed to the Department of Correctional Services. In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989).

A juvenile court has broad discretion as to the disposition of a child found to be delinquent. In re Interest of Jones, 230 Neb. 462, 432 N.W.2d 46 (1988).

Disposition of juveniles adjudged within section 43-247 is pursuant to sections 43-283 to 43-2,101. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).

A juvenile court may not change a disposition unless the juvenile has violated a term of probation or supervision or the juvenile has violated an order of the court and the procedures established in subdivision (5)(b) of this section have been satisfied. In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018).

Subsection (5) of this section sets forth the procedures for changing an existing disposition. In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018).

This section sets out a juvenile court's disposition options for juveniles who have been adjudicated under subdivision (1), (2), or (4) of section 43-247. In re Interest of Iyana P., 25 Neb. App. 439, 907 N.W.2d 333 (2018).

In exercising its jurisdiction, a juvenile court cannot modify a disposition order without, at least, a motion, appropriate notice, and a hearing satisfying the requirements of due process. In addition to lacking the authority to order the Department of Health and Human Services to supervise a juvenile's probation, the juvenile court also lacks the authority to order the Department of Health and Human Services to supervise a juvenile's house arrest or to oversee a juvenile's payment of restitution. In re Interest of Juan L., 6 Neb. App. 683, 577 N.W.2d 319 (1998).

43-286.01. Juveniles; graduated response; probation officer; duties; powers; county attorney; file action to revoke probation; when.

(1) For purposes of this section, graduated response means an accountability-based series of sanctions, incentives, and services designed to facilitate the juvenile’s continued progress in changing behavior, ongoing compliance, and successful completion of probation. Graduated response does not include restrictions of liberty that would otherwise require a hearing under subsection (3) of section 43-253.

(2) The Office of Probation Administration may establish a statewide standardized graduated response matrix of incentives for compliance and positive behaviors and sanctions for probationers who violate the terms and conditions of a court order. The graduated response system shall use recognized best practices and be developed with the input of stakeholders, including judges, probation officers, county attorneys, defense attorneys, juveniles, and parents. The office shall provide implementation and ongoing training to all probation officers on the graduated response options.

(3) Graduated response sanctions should be immediate, certain, consistent, and fair to appropriately address the behavior. Failure to complete a sanction may result in repeating the sanction, increasing the duration, or selecting a different sanction similar in nature. Continued failure to comply could result in a request for a motion to revoke probation. Once a sanction is successfully completed the alleged probation violation is deemed resolved and cannot be alleged as a violation in future proceedings.

(4) Graduated response incentives should provide positive reinforcement to encourage and support positive behavior change and compliance with court-ordered conditions of probation.

(5) Whenever a probation officer has reasonable cause to believe that a juvenile subject to the supervision of a probation officer has committed a violation of the terms of the juvenile's probation while on probation, but that such juvenile will not attempt to leave the jurisdiction and will not place lives or property in danger, the probation officer shall either:

(a) Impose one or more graduated response sanctions with the approval of his or her chief probation officer or such chief's designee. The decision to impose graduated response sanctions in lieu of formal revocation proceedings rests with the probation officer and his or her chief probation officer or such chief's designee and shall be based upon such juvenile's risk level, the severity of the violation, and the juvenile's response to the violation. If graduated response sanctions are to be imposed, such juvenile shall acknowledge in writing the nature of the violation and agree upon the graduated response sanction with approval of such juvenile's parents or guardian. Such juvenile has the right to decline to acknowledge the violation, and if he or she declines to acknowledge the violation, the probation officer shall submit a written report pursuant to subdivision (5)(b) of this section. If the juvenile fails to satisfy the graduated response sanctions and the office determines that a motion to revoke probation should be pursued, the probation officer shall submit a written report pursuant to subdivision (5)(b) of this section. A copy of the report shall be submitted to the county attorney of the county where probation was imposed; or

(b) Submit a written report to the county attorney of the county where probation was imposed and to the juvenile’s attorney of record, outlining the nature of the probation violation and request that formal revocation proceedings be instituted against the juvenile subject to the supervision of a probation officer. The report shall also include a statement regarding why graduated response sanctions were not utilized or were ineffective. If there is no attorney of record for the juvenile, the office shall notify the court and counsel for the juvenile shall be appointed.

(6) Whenever a probation officer has reasonable cause to believe that a juvenile subject to the supervision of a probation officer has violated a condition of his or her probation and that such juvenile will attempt to leave the jurisdiction or will place lives or property in danger, the probation officer shall take such juvenile into temporary custody without a warrant and may call on any peace officer for assistance as provided in section 43-248. Continued detention or deprivation of liberty shall be subject to the criteria and requirements of sections 43-251.01, 43-260, and 43-260.01 and subdivision (5)(b)(iv) of section 43-286, and a hearing shall be held before the court within twenty-four hours as provided in subsection (3) of section 43-253.

(7) Immediately after detention or deprivation of liberty pursuant to subsection (6) of this section, the probation officer shall notify the county attorney of the county where probation was imposed and the juvenile's attorney of record and submit a written report describing the risk of harm to lives or property or of fleeing the jurisdiction which precipitated the need for such detention or deprivation of liberty and of any violation of probation. If there is no attorney of record for the juvenile, the office shall notify the court and counsel for the juvenile shall be appointed. After prompt consideration of the written report, the county attorney shall:

(a) Order the release of the juvenile from confinement or alternative to detention subject to the supervision of a probation officer; or

(b) File with the adjudicating court a motion to revoke the probation.

(8) Whenever a county attorney receives a report from a probation officer that a juvenile subject to the supervision of a probation officer has violated a condition of probation and the probation officer is seeking revocation of probation, the county attorney may file a motion to revoke probation.

(9) Whenever a juvenile subject to supervision of a probation officer is engaging in positive behavior, completion of goals, and compliance with the terms of probation, the probation officer shall use graduated incentives to provide positive reinforcement and encouragement of such behavior. The office shall keep records of all incentives and provide such records to the county attorney or the juvenile’s attorney upon request.

(10) During the term of probation, the court, on application of a probation officer or of the juvenile or on its own motion, may reduce or eliminate any of the conditions imposed on the juvenile. Upon completion of the term of probation or the earlier discharge of the juvenile, the juvenile shall be relieved of any obligations imposed by the order of the court and his or her record shall be sealed pursuant to section 43-2,108.04.

(11) The probation administrator shall adopt and promulgate rules and regulations to carry out this section.

Source:Laws 2010, LB800, § 7; R.S.Supp.,2010, § 29-2262.08; Laws 2011, LB463, § 5; Laws 2017, LB8, § 3.

43-287. Impoundment of license or permit issued under Motor Vehicle Operator's License Act; other powers of court; copy of abstract to Department of Motor Vehicles; fine for excessive absenteeism from school; not eligible for ignition interlock permit.

(1) When a juvenile is adjudged to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, the juvenile court may:

(a) If such juvenile holds any license or permit issued under the Motor Vehicle Operator's License Act, impound any such license or permit for thirty days; or

(b) If such juvenile does not have a permit or license issued under the Motor Vehicle Operator's License Act, prohibit such juvenile from obtaining any permit or any license pursuant to the act for which such juvenile would otherwise be eligible until thirty days after the date of such order.

(2) A copy of an abstract of the juvenile court's adjudication shall be transmitted to the Director of Motor Vehicles pursuant to sections 60-497.01 to 60-497.04 if a license or permit is impounded or a juvenile is prohibited from obtaining a license or permit under subsection (1) of this section. If a juvenile whose operator's license or permit has been impounded by a juvenile court operates a motor vehicle during any period that he or she is subject to the court order not to operate any motor vehicle or after a period of impoundment but before return of the license or permit, such violation shall be handled in the juvenile court and not as a violation of section 60-4,108.

(3) When a juvenile is adjudged to be a juvenile described in subdivision (3)(a) of section 43-247 for excessive absenteeism from school, the juvenile court may issue the parents or guardians of such juvenile a fine not to exceed five hundred dollars for each offense or order such parents or guardians to complete specified hours of community service. For community service ordered under this subsection, the juvenile court may require that all or part of the service be performed for a public school district or nonpublic school if the court finds that service in the school is appropriate under the circumstances.

(4) A juvenile who holds any license or permit issued under the Motor Vehicle Operator's License Act and has violated subdivision (3)(b) or (c) of section 28-306, subdivision (3)(b) or (c) of section 28-394, or section 28-1254, 60-6,196, 60-6,197, 60-6,197.06, or 60-6,198 shall not be eligible for an ignition interlock permit.

Source:Laws 2010, LB800, § 24; Laws 2012, LB751, § 5; Laws 2019, LB269, § 1.

Cross References

Motor Vehicle Operator's License Act, see section 60-462.

43-287.01. Repealed. Laws 2010, LB 800, § 40.

43-287.02. Repealed. Laws 2010, LB 800, § 40.

43-287.03. Repealed. Laws 2010, LB 800, § 40.

43-287.04. Repealed. Laws 2010, LB 800, § 40.

43-287.05. Repealed. Laws 2010, LB 800, § 40.

43-287.06. Repealed. Laws 2010, LB 800, § 40.

43-288. Order allowing juvenile to return or remain at home; conditions and requirements.

If the court's order of disposition permits the juvenile to remain in his or her own home as provided by section 43-284 or 43-286, the court may, as a condition or conditions to the juvenile's continuing to remain in his or her own home, or in cases under such sections when the juvenile is placed or detained outside his or her home, as a condition of the court allowing the juvenile to return home, require the parent, guardian, or other custodian to:

(1) Eliminate the specified conditions constituting or contributing to the problems which led to juvenile court action;

(2) Provide adequate food, shelter, clothing, and medical care and for other needs of the juvenile;

(3) Give adequate supervision to the juvenile in the home;

(4) Take proper steps to insure the juvenile's regular school attendance;

(5) Cease and desist from specified conduct and practices which are injurious to the welfare of the juvenile; and

(6) Resume proper responsibility for the care and supervision of the juvenile.

The terms and conditions imposed in any particular case shall relate to the acts or omissions of the juvenile, the parent, or other person responsible for the care of the juvenile which constituted or contributed to the problems which led to the juvenile court action in such case. The maximum duration of any such term or condition shall be one year unless the court finds that at the conclusion of that period exceptional circumstances require an extension of the period for an additional year.

Source:Laws 1981, LB 346, § 44; Laws 1982, LB 787, § 19.

Annotations

A juvenile court's order that children under its jurisdiction have their immunizations brought up to date was within the power of that court, even where the Department of Health and Human Services did not indicate concern about the children's health or immunization history. In re Interest of Becka P. et al., 298 Neb. 98, 902 N.W.2d 697 (2017).

A juvenile court order that adopts a case plan with a material change in the conditions for reunification with a parent’s child is a crucial step in child protection proceedings that could possibly lead to the termination of parental rights, and thus, such orders affect a parent’s substantial right in a special proceeding and are appealable. In re Interest of Mya C. & Sunday C., 286 Neb. 1008, 840 N.W.2d 493 (2013).

This section gives the juvenile court explicit statutory authority to require the custodian of the juveniles to eliminate the specified conditions contributing to the problems which led to juvenile court action and to require the custodian to give adequate supervision to the juveniles in the home. In re Interest of Crystal T. et al., 7 Neb. App. 921, 586 N.W.2d 479 (1998).

43-289. Juvenile committed; release from confinement upon reaching age of majority; hospital treatment; custody in state institutions; discharge.

In no case shall a juvenile committed under the terms of the Nebraska Juvenile Code be confined after he or she reaches the age of majority. The court may, when the health or condition of any juvenile adjudged to be within the terms of such code shall require it, cause the juvenile to be placed in a public hospital or institution for treatment or special care or in an accredited and suitable private hospital or institution which will receive the juvenile for like purposes. Whenever any juvenile has been committed to the Department of Health and Human Services, the department shall follow the court's orders, if any, concerning the juvenile's specific needs for treatment or special care for his or her physical well-being and healthy personality. If the court finds any such juvenile to be a person with an intellectual disability, the court may, upon attaching a physician's certificate and a report as to the mental capacity of such person, commit such juvenile directly to an authorized and appropriate state or local facility or home.

The marriage of any juvenile committed to a state institution under the age of nineteen years shall not make such juvenile of the age of majority.

A juvenile committed to any such institution shall be subject to the control of the superintendent thereof, and the superintendent, with the advice and consent of the Department of Health and Human Services, shall adopt and promulgate rules and regulations for the promotion, paroling, and final discharge of residents such as shall be considered mutually beneficial for the institution and the residents. Upon final discharge of any resident, such department shall file a certified copy of the discharge with the court which committed the resident.

Source:Laws 1981, LB 346, § 45; Laws 1985, LB 447, § 26; Laws 1986, LB 1177, § 18; Laws 1989, LB 182, § 15; Laws 1996, LB 1044, § 141; Laws 2013, LB23, § 10.

43-290. Costs of care and treatment; payment; procedure.

It is the purpose of this section to promote parental responsibility and to provide for the most equitable use and availability of public money.

Pursuant to a petition filed by a county attorney or city attorney having knowledge of a juvenile in his or her jurisdiction who appears to be a juvenile described in subdivision (1), (2), (3), or (4) of section 43-247, whenever the care or custody of a juvenile is given by the court to someone other than his or her parent, which shall include placement with a state agency, or when a juvenile is given medical, psychological, or psychiatric study or treatment under order of the court, the court shall make a determination of support to be paid by a parent for the juvenile at the same proceeding at which placement, study, or treatment is determined or at a separate proceeding. Such proceeding, which may occur prior to, at the same time as, or subsequent to adjudication, shall be in the nature of a disposition hearing.

At such proceeding, after summons to the parent of the time and place of hearing served as provided in sections 43-262 to 43-267, the court may order and decree that the parent shall pay, in such manner as the court may direct, a reasonable sum that will cover in whole or part the support, study, and treatment of the juvenile, which amount ordered paid shall be the extent of the liability of the parent. The court in making such order shall give due regard to the cost of the support, study, and treatment of the juvenile, the ability of the parent to pay, and the availability of money for the support of the juvenile from previous judicial decrees, social security benefits, veterans benefits, or other sources. Support thus received by the court shall be transmitted to the person, agency, or institution having financial responsibility for such support, study, or treatment and, if a state agency or institution, remitted by such state agency or institution quarterly to the Director of Administrative Services for credit to the proper fund.

Whenever medical, psychological, or psychiatric study or treatment is ordered by the court, whether or not the juvenile is placed with someone other than his or her parent, or if such study or treatment is otherwise provided as determined necessary by the custodian of the juvenile, the court shall inquire as to the availability of insured or uninsured health care coverage or service plans which include the juvenile. The court may order the parent to pay over any plan benefit sums received on coverage for the juvenile. The payment of any deductible under the health care benefit plan covering the juvenile shall be the responsibility of the parent. If the parent willfully fails or refuses to pay the sum ordered or to pay over any health care plan benefit sums received, the court may proceed against him or her as for contempt, either on the court's own motion or on the motion of the county attorney or authorized attorney as provided in section 43-512, or execution shall issue at the request of any person, agency, or institution treating or maintaining such juvenile. The court may afterwards, because of a change in the circumstances of the parties, revise or alter the order of payment for support, study, or treatment.

If the juvenile has been committed to the care and custody of the Department of Health and Human Services, the department shall pay the costs for the support, study, or treatment of the juvenile which are not otherwise paid by the juvenile's parent.

If no provision is otherwise made by law for the support or payment for the study or treatment of the juvenile, compensation for the support, study, or treatment shall be paid, when approved by an order of the court, out of a fund which shall be appropriated by the county in which the petition is filed.

The juvenile court shall retain jurisdiction over a parent ordered to pay support for the purpose of enforcing such support order for so long as such support remains unpaid but not to exceed ten years from the nineteenth birthday of the youngest child for whom support was ordered.

Source:Laws 1981, LB 346, § 46; Laws 1982, LB 787, § 20; Laws 1987, LB 638, § 7; Laws 1989, LB 182, § 16; Laws 1996, LB 1044, § 142; Laws 2003, LB 43, § 15; Laws 2014, LB464, § 22.

Annotations

1. Treatment

2. Powers of court

3. Miscellaneous

1. Treatment

Court-ordered detention of a juvenile for the partial purpose of placement into a treatment program constitutes "treatment" of the juvenile as the term is used in this section. In re Interest of Aaron K., 250 Neb. 489, 550 N.W.2d 13 (1996).

When a juvenile is committed to the care and custody of the Department of Social Services, and temporary detention results for the protection of the child, or is found to be in the best interests of the juvenile's physical or mental health needs, that type of detention is "treatment" of the juvenile. In re Interest of Lisa O., 248 Neb. 865, 540 N.W.2d 109 (1995).

2. Powers of court

If the child has not been committed to the custody of the Department of Social Services, the court has no authority to order the department to finance the child's custody or treatment. In re Interest of Todd T., 249 Neb. 738, 545 N.W.2d 711 (1996).

The section allows a court to retain jurisdiction over a parent when the parent is ordered to pay for services rendered to a child, but does not give the court power over the parent when the court never obtained jurisdiction over the parent, or when the court lost jurisdiction over the parent. In re Interest of Lisa V., 3 Neb. App. 559, 529 N.W.2d 805 (1995).

3. Miscellaneous

The Nebraska Department of Health and Human Services is responsible for the costs of placing and caring for juveniles within its custody, regardless of which subsection of section 43-247 that juvenile is adjudicated under. The Nebraska Department of Health and Human Services is responsible for the costs of caring for a juvenile with which it has been granted custody, but only for those periods during which the juvenile is actually placed, by order of a juvenile court, in the custody of the department. In re Interest of Jeremy T., 257 Neb. 736, 600 N.W.2d 747 (1999).

A separate summons must be served on a parent of the time and place of a support hearing if the support hearing is not conducted at the same proceeding at which placement, study, or treatment is determined. In re Interest of Rondell B., 249 Neb. 928, 546 N.W.2d 801 (1996).

An order which requires the Department of Social Services to pay for services rendered to the juvenile's father constitutes a dispositional hearing as contemplated by the juvenile code. In re Interest of M.J.B., 242 Neb. 671, 496 N.W.2d 495 (1993).

The amendment to this section providing that "(i)f the juvenile has been committed to the care and custody of the Department of Social Services, the department shall pay the costs for the support, study, or treatment of the juvenile which are not otherwise paid by the juvenile's parent" applies only where the court orders such services after the effective date of the amendment, August 25, 1989. In re Interest of J.M.N., 237 Neb. 116, 464 N.W.2d 811 (1991).

The Department of Social Services is not a parent within the meaning of this section. In re Interest of J.M.N., 237 Neb. 116, 464 N.W.2d 811 (1991).

The Nebraska Child Support Guidelines apply in juvenile cases where child support is ordered. In re Interest of Cayden R. et al., 27 Neb. App. 242, 929 N.W.2d 913 (2019).

Whether a parent is ordered to contribute to the support, study, and treatment of a juvenile under this section is a matter entrusted to the discretion of the juvenile or county court. A subsidized adoption agreement with the Department of Social Services was properly considered as a "source" of money available for a juvenile's support. In re Interest of Crystal T., 4 Neb. App. 503, 546 N.W.2d 77 (1996).

43-290.01. Costs; payment.

(1) Payment of costs for juveniles described in or alleged to be described in subdivision (1), (2), (3)(b), or (4) of section 43-247, except as ordered by the court pursuant to section 43-290, shall be paid by:

(a) The county for the period of time prior to adjudication, except as provided in subdivision (1)(b) of this section. Such costs paid for by the county include, but are not limited to, the costs of detention, services, detention alternatives, treatment, voluntary services, and transportation;

(b) The Office of Probation Administration for:

(i) The period of time after adjudication until termination of court jurisdiction, including, but not limited to, the costs of evaluations, detention, services, placement that is not detention, detention alternatives, treatment, voluntary services, and transportation, other than transportation paid under subdivision (1)(c) of this section;

(ii) The time period prior to adjudication for a juvenile who is on probation and is alleged to have committed a new violation or is a juvenile who is subject to a motion to revoke probation; and

(iii) Preadjudication evaluations and preadjudication placements that are not detention; and

(c) The Office of Juvenile Services for any period of time from when the court commits the juvenile to the Office of Juvenile Services until the juvenile is discharged by the Office of Juvenile Services, including, but not limited to, the costs of evaluations, placement, services, detention including detention costs prior to placement, and transportation to and from the youth rehabilitation and treatment center.

(2) For payment of costs involved in the adjudication and disposition of juveniles, other than those described in subsection (1) or (3) of this section:

(a) The Department of Health and Human Services shall pay the costs incurred during an evaluation or placement with the department that is ordered by the court except as otherwise ordered by the court pursuant to section 43-290;

(b) Payment of costs for juveniles with a court adjudication or disposition under section 43-284: Upon a determination by the court that there are no parental, private, or other funds available for the care, custody, education, and maintenance of the juvenile, the court may order a reasonable sum for the care, custody, education, and maintenance of the juvenile to be paid out of a fund appropriated annually by the county where the petition is filed until suitable provisions are made for the juvenile without such payment. The amount to be paid by a county for education shall not exceed the average cost for education of a public school student in the county in which the juvenile is placed and shall be paid only for education in kindergarten through grade twelve; and

(3) Payment of costs of medical expenses of juveniles under the Nebraska Juvenile Code shall be as provided in section 43-290.

Source:Laws 2014, LB464, § 21.

43-291. Termination of parental rights; proceedings.

Facts may also be set forth in the original petition, a supplemental petition, or motion filed with the court alleging that grounds exist for the termination of parental rights. After a petition, a supplemental petition, or motion has been filed, the court shall cause to be endorsed on the summons and notice that the proceeding is one to terminate parental rights, shall set the time and place for the hearing, and shall cause summons and notice, with a copy of the petition, supplemental petition, or motion attached, to be given in the same manner as required in other cases before the juvenile court.

Source:Laws 1981, LB 346, § 47.

Annotations

The Nebraska Juvenile Code provides for the filing of an original petition seeking termination of parental rights under this section. Subsection (6) of section 43-247 and this section indicate that the juvenile court may properly acquire jurisdiction over an original action to terminate parental rights as provided in the Nebraska Juvenile Code without prior juvenile court action, including adjudication. The plain and ordinary meaning of this section and section 43-292, taken together, is that parental rights may be terminated in an original proceeding. In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).

Notice of action to terminate parental rights is required under this section. In re Interest of D.J. et al., 224 Neb. 226, 397 N.W.2d 616 (1986).

Although there may have been no prior juvenile court action, including adjudication, the juvenile court acquires jurisdiction to terminate parental rights when a motion to terminate parental rights containing the grounds for termination is filed under subsections (1) through (5) of section 43-292. In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001).

In a hearing on the termination of parental rights without a prior adjudication, where such termination is sought under subsections (1) through (5) of section 43-292, such proceedings must be accompanied by due process safeguards, as statutory provisions cannot abrogate constitutional rights. In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001).

Although adjudication and disposition proceedings may be combined, the adjudication proceeding may not be omitted altogether. In re Interest of Joelyann H., 6 Neb. App. 472, 574 N.W.2d 185 (1998).

43-292. Termination of parental rights; grounds.

The court may terminate all parental rights between the parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds such action to be in the best interests of the juvenile and it appears by the evidence that one or more of the following conditions exist:

(1) The parents have abandoned the juvenile for six months or more immediately prior to the filing of the petition;

(2) The parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection;

(3) The parents, being financially able, have willfully neglected to provide the juvenile with the necessary subsistence, education, or other care necessary for his or her health, morals, or welfare or have neglected to pay for such subsistence, education, or other care when legal custody of the juvenile is lodged with others and such payment ordered by the court;

(4) The parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well-being of the juvenile;

(5) The parents are unable to discharge parental responsibilities because of mental illness or mental deficiency and there are reasonable grounds to believe that such condition will continue for a prolonged indeterminate period;

(6) Following a determination that the juvenile is one as described in subdivision (3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court, have failed to correct the conditions leading to the determination;

(7) The juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months;

(8) The parent has inflicted upon the juvenile, by other than accidental means, serious bodily injury;

(9) The parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse;

(10) The parent has (a) committed murder of another child of the parent, (b) committed voluntary manslaughter of another child of the parent, (c) aided or abetted, attempted, conspired, or solicited to commit murder, or aided or abetted voluntary manslaughter of the juvenile or another child of the parent, or (d) committed a felony assault that resulted in serious bodily injury to the juvenile or another minor child of the parent; or

(11) One parent has been convicted of felony sexual assault of the other parent under section 28-319.01 or 28-320.01 or a comparable crime in another state.

Source:Laws 1981, LB 346, § 48; Laws 1992, LB 1184, § 15; Laws 1996, LB 1044, § 143; Laws 1998, LB 1041, § 27; Laws 2009, LB517, § 2.

Annotations

1. Basic requirements for termination

2. Abandonment

3. Neglect

4. Mental illness or deficiency

5. Rehabilitation or reunification plan

6. Out-of-home placement

7. Aggravated circumstances

8. Appeal

9. Constitutional rights

10. Miscellaneous

1. Basic requirements for termination

Although the term "unfitness" is not expressly stated in this section, it derives from the fault and neglect subdivisions and from an assessment of the child's best interests. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

Parental unfitness means a personal deficiency or incapacity that has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and that has caused, or probably will result in, detriment to a child's well-being. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

The best interests and parental unfitness analyses in the context of a termination of parental rights case require separate, fact-intensive inquiries, but each examines essentially the same underlying facts. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

There is a rebuttable presumption that it is in the child's best interests to share a relationship with his or her parent. That presumption can only be overcome by a showing that the parent is either unfit to perform the duties imposed by the relationship or has forfeited that right. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

This section contains 11 separate subdivisions, any one of which can serve as a basis for terminating parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

To terminate parental rights, it is the State's burden to show by clear and convincing evidence both that one of the statutory bases exists and that termination is in the child's best interests. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021); In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

Whereas the statutory grounds for termination are based on a parent's past conduct, the best interests inquiry focuses on the future well-being of the child. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021); In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

Before the State attempts to force a breakup of a natural family, over the objections of the parents and their children, the State must prove parental unfitness. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

Regardless of the length of time a child is placed outside the home, it is always the State's burden to prove by clear and convincing evidence that the parent is unfit and that the child's best interests are served by his or her continued removal from parental custody. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

Under this section, in order to terminate parental rights, the State must prove, by clear and convincing evidence, that one or more of the statutory grounds listed in this section have been satisfied and that termination is in the child's best interests. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

The presumption that the best interests of a child are served by reuniting the child with his or her parent is overcome only when the parent has been proved unfit. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

For a juvenile court to terminate parental rights under this section, it must find that termination is in the child's best interests and that one or more of the statutory grounds listed in this section have been satisfied. The State must prove these facts by clear and convincing evidence. In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).

In order to terminate an individual's parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in this section exists and that termination is in the children's best interests. In re Interest of Joshua R. et al., 265 Neb. 374, 657 N.W.2d 209 (2003); In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000); In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012); In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

Two requirements must be met before parental rights may be terminated. First, requisite evidence must establish the existence of one or more of the circumstances described in subsections (1) to (10) of this section. Second, if a circumstance designated in subsections (1) to (10) is evidentially established, there must be the additional showing that termination of parental rights is in the best interests of the child. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Phyllisa B., 265 Neb. 53, 654 N.W.2d 738 (2002); In re Interest of Azia B., 10 Neb. App. 124, 626 N.W.2d 602 (2001).

In order to terminate parental rights with respect to a child on the basis of neglect under subsection (2) of this section, as amended, the State must prove by clear and convincing evidence that (1) the parents have substantially and continuously or repeatedly neglected and refused to give the child or a sibling of said child necessary parental care and protection and (2) termination of parental rights is in the best interests of the child. In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000).

The language of this section imposes two requirements before parental rights may be terminated. First, requisite evidence must establish the existence of one or more of the circumstances described in subsections (1) to (10) of this section. Second, if a circumstance designated in subsections (1) to (10) of this section is evidentially established, there must be the additional showing that termination of parental rights is in the best interests of the child, the primary consideration in any question concerning termination of parental rights. Each of the requirements imposed by this section must be proved by clear and convincing evidence. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).

A court may terminate parental rights when such action is in the best interests of the child and one or more of the statutorily specified conditions exist. The special needs of the child in question do not provide a basis for terminating parental rights if the record does not clearly and convincingly establish that the parent is not capable of providing the required special attention. In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998).

Before parental rights may be terminated, requisite evidence must establish existence of one or more of the circumstances described in subsections (1) to (6) of this section, and there must be an additional showing that termination is in the best interests of the child. In re Interest of C.K., L.K., and G.K., 240 Neb. 700, 484 N.W.2d 68 (1992); In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).

In order to terminate parental rights, it must be shown that termination of parental rights is in the child's best interests and that at least one of six bases provided in this section exists. In re Interest of J.B. et al., 235 Neb. 530, 455 N.W.2d 817 (1990).

In order to terminate parental rights, the State must prove by clear and convincing evidence that termination of parental rights is in the child's best interests and that at least one of the six bases provided in this section exists. In re Interest of C.D.C., 235 Neb. 496, 455 N.W.2d 801 (1990).

In order to terminate parental rights under this section, there must be clear and convincing evidence of the existence of one or more of the circumstances described in subsections (1) to (6), and if one of the conditions described in subsections (1) to (6) has been evidentially established, there must be an additional showing by clear and convincing evidence that termination of parental rights is in the child's best interests. In re Interest of J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).

Language of this section imposes two requirements before parental rights may be terminated: First, requisite evidence must establish existence of one or more of the circumstances described in subsections (1) to (6); and second, there must be the additional showing that termination of parental rights is in the best interests of the child, the primary consideration in any question concerning termination of parental rights. The standard of proof for each of the two preceding requirements is evidence which is "clear and convincing." In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).

Terminating parental rights requires both clear and convincing evidence that one of the statutory grounds enumerated in this section exists and clear and convincing evidence that termination is in the best interests of the children. Kitsmiller v. Kitsmiller, 31 Neb. App. 473, 983 N.W.2d 147 (2022).

Any one of the bases for termination codified by this section can serve as a basis for termination of parental rights when coupled with evidence that termination is in the best interests of the children. In re Interest of Jay'Oni W. et al., 31 Neb. App. 302, 979 N.W.2d 290 (2022).

Terminating parental rights requires both clear and convincing evidence that one of the statutory grounds enumerated in this section exists and clear and convincing evidence that termination is in the best interests of the children. In re Interest of Jay'Oni W. et al., 31 Neb. App. 302, 979 N.W.2d 290 (2022).

A child's best interests are presumed to be served by having a relationship with his or her parent, which presumption is overcome only when the State has proved that the parent is unfit. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

A termination of parental rights is a final and complete severance of the child from the parent and removes the entire bundle of parental rights, and parental rights should be terminated only in the absence of any reasonable alternative and as a last resort. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

Any one of the bases for termination of parental rights codified by this section can serve as a basis for termination of parental rights when coupled with evidence that termination is in the best interests of the children. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

Rather than requiring perfection of a parent, courts should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

Although a statutory ground did exist to terminate the father's parental rights in this case, the State did not meet its burden to prove by clear and convincing evidence that the father was unfit or that it was in the child's best interests for the father's parental rights to be terminated at that time. Given the impact of the COVID-19 pandemic on institutional programming and availability, case manager communications, and visitations, along with the short timeframe before the father's release from incarceration, the father should have been given some additional time to show he could make progress on his case goals and parent his child before the State sought to terminate his parental rights. In re Interest of Xaiden N., 30 Neb. App. 378, 968 N.W.2d 856 (2021).

In termination of parental rights cases, it is proper to consider a parent's inability to perform his or her parental obligations because of imprisonment and the nature of the crime committed, as well as the person against whom the criminal act was perpetrated. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

The State must prove the facts by clear and convincing evidence when showing a factual basis exists under any of the 11 subdivisions of this section. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

The term "unfitness" is not expressly used in this section but the concept is generally encompassed by the fault and neglect subsections of this section, and also through a determination of the child's best interests. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

Any one of the 11 separate codified grounds can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Giavonna G., 23 Neb. App. 853, 876 N.W.2d 422 (2016).

Only one ground for termination under this section need be proved in order to terminate parental rights. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

A combination of the best interests of the child and evidence of fault or neglect on the part of the parent is required to terminate a parent's natural right to the custody of his or her own child. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).

Whether termination of parental rights is in the best interests of a child involves consideration of two aspects: (1) what the child might gain or lose by a continued relationship with the parent and (2) what the child might gain by the prospects of new relationships which the termination might open for the child. In re Interest of Heather G. et al., 12 Neb. App. 13, 664 N.W.2d 448 (2003).

Pursuant to this section, a court may terminate parental rights when such action is in the best interests of the child and one or more of the statutorily specified conditions exist. In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

2. Abandonment

A court reviewing a termination of parental rights case on the ground of abandonment need not consider the 6-month period in a vacuum. Instead, the court may consider evidence of a parent's conduct, either before or after the statutory period, in determining whether the purpose and intent of that parent was to abandon his or her children. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).

For purposes of subdivision (1) of this section, "abandonment" is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016); In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009); In re Interest of Austin G., 24 Neb. App. 773, 898 N.W.2d 385 (2017).

Clear and convincing evidence supported the finding of abandonment where the father was initially involved in his child's life but then demonstrated no interest in the child or in exercising parental responsibilities. In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014).

Incarceration does not excuse a parent's obligation to provide the child with a continuing relationship. In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014).

Whether a parent has abandoned a child within the meaning of subdivision (1) of this section is a question of fact and depends upon parental intent, which may be determined by circumstantial evidence. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013); In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009); Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004); In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990); In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990); In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004); In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

Pursuant to subsection (1) of this section, evidence of abandonment was insufficient when the mother had been involuntarily removed from the United States and had made efforts to return in order to participate in juvenile proceedings and to inquire about her children, despite her removal and the Department of Health and Human Services' failure to show that it had informed the mother how contact with her children could be accomplished. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

Even though a juvenile court ordered a mother to have no visitation with her children approximately 7 weeks before the State filed a petition to terminate her parental rights based on abandonment, it was determined that the mother did abandon her children within the meaning of subsection (1) of this section where the mother failed to present any evidence which would show a continuing interest in the children or a genuine effort to maintain communication and a meaningful relationship with the children. In re Interest of Dustin H. et al., 259 Neb. 166, 608 N.W.2d 580 (2000).

In the context of subsection (1) of this section, "abandonment" is defined as a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child. The question of abandonment is largely one of intent, to be determined in each case from all the facts and circumstances. If a parent voluntarily, but unreasonably or unjustifiably, departs from the state of residence of the parent's child or children, such departure may constitute parental abandonment of the child or children. Abandonment is not an ambulatory thing, the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child. Parental obligation requires a continuing interest in the child and a genuine effort to maintain communication and association with that child. Small tokens of parental affection for a child are an inadequate substitute for parental presence in a child's life. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).

Mother abandoned her children when she voluntarily left the State of Nebraska temporarily to look for her common-law husband's children. In re Interest of C.K., L.K., and G.K., 240 Neb. 700, 484 N.W.2d 68 (1992).

Parental incarceration may be considered in reference to abandonment as a basis for termination of parental rights under subsection (1) of this section. "Abandonment," for the purpose of subsection (1) of this section, is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and opportunity for the display of parental affection for the child. The question of abandonment is largely one of intent, to be determined in each case from all of the facts and circumstances. In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).

A father who makes no effort to secure his parental rights for over 3 years has abandoned his child within the meaning of subsection (1) of this section. In re Interest of K.M.S., 236 Neb. 665, 463 N.W.2d 586 (1990).

Whether a parent has abandoned a child within the meaning of subsection (1) of this section is a question of fact and depends on parental intent, which may be determined by circumstantial evidence. In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (1990).

A parent who has voluntarily chosen to violate the law so as to have been convicted of five separate felonies may have placed himself in a position where he has effectively abandoned the child pursuant to subsection (1) of this section. In re Interest of B.A.G., 235 Neb. 730, 457 N.W.2d 292 (1990).

Pursuant to subsection (1) of this section, if a parent voluntarily, but unreasonably or unjustifiably, departs from the state of residence of the parent's child or children, such departure may constitute parental abandonment of the child and cannot be used as an excuse for noncompliance with a court-ordered plan for parental rehabilitation. In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990).

Under subsection (1) of this section, abandonment is an intentional withholding from the child, without just cause or excuse, by the parent of the parent's presence, care, love, and protection; maintenance; and the opportunity for the display of filial affection. Abandonment is not an ambulatory thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child. In re Interest of J.M.D., 233 Neb. 540, 446 N.W.2d 233 (1989).

A specific condition of termination of parental rights under subsection (1) of this section is that the parent abandon the child for at least six months preceding the filing of the petition. In re Interest of M.B., R.P., and J.P., 222 Neb. 757, 386 N.W.2d 877 (1986).

Evidence supported the juvenile court's finding that the father did not abandon the child when (1) the father actively sought custody and paid child support within the crucial 6-month period and (2) the father's delay in seeking intervention was due to just cause. In re Interest of Deztiny C., 15 Neb. App. 179, 723 N.W.2d 652 (2007).

Pursuant to subsection (1) of this section, a court may terminate parental rights if the parent has abandoned the juvenile for 6 months or more immediately prior to the filing of the petition. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).

Pursuant to subsection (1) of this section, the term "immediately prior" regarding abandonment means the time period determined by counting back 6 months from the filing date of the petition. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).

A parent who has voluntarily chosen to violate the law, who has been imprisoned for the vast majority of his child's life, and who will continue to be imprisoned for several years may have placed himself in a position where he has effectively abandoned the child pursuant to subsection (1) of this section. A juvenile court may consider evidence of a parent's conduct prior to the birth of the child in proceedings to terminate parental rights pursuant to subsection (1) of this section. In re Interest of Theodore W., 4 Neb. App. 428, 545 N.W.2d 119 (1996).

Evidence did not support juvenile court's finding that father abandoned children for 6 months prior to termination hearing, pursuant to subsection (1) of this section, when in fact visitations were discouraged by Department of Social Services until court order denying visitation was granted 2 months prior to termination hearing. In re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418 (1993).

3. Neglect

The evidence supported terminating the parental rights of a mother who, due in part to continued drug use and an abusive relationship, failed to put herself in a position to have her children returned to her care within a reasonable time. In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).

Past neglect, along with facts relating to current family circumstances which go to best interests, are all properly considered in a parental rights termination case under subdivision (2) of this section. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).

One need not have physical possession of a child to demonstrate the existence of neglect contemplated by subsection (2) of this section. In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest of J.N.V., 224 Neb. 108, 395 N.W.2d 758 (1986).

Trial court did not err in terminating parental rights where the children were traumatized to an extent that the mere presence of the parents sent them into a panic and the parent-child relationships were effectively destroyed by the neglect and cruelty of the parents. It is only when the State seeks to terminate parental rights pursuant to subsection (6) of this section that the State is required to prove that it has instituted a reasonable plan for rehabilitation of the parents and that they have failed to comply. In the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code, termination of parental rights is permissible when the basis for such termination is provided by clear and convincing evidence. In re Interest of S.B.E. et al., 240 Neb. 748, 484 N.W.2d 97 (1992).

Because of mother's lack of insight and her lack of motivation to place the interests of her children ahead of her own, the trial court did not err in finding there was clear and convincing evidence to establish that the mother had substantially, continuously, and repeatedly neglected her children and had refused to give them the necessary parental care and protection. In re Interest of B.B. et al., 239 Neb. 952, 479 N.W.2d 787 (1992).

A parent's failure to take proper measures to protect children from abuse by another furnishes sufficient cause to terminate parental rights under subsection (2) of this section. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).

A parent's fright does not, by itself, excuse his or her failure to extricate children from a dangerous environment. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).

When a parent fails to protect some but not all children from the physical abuse by another, a court may terminate parental rights in the children not physically abused. In re Interest of J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).

Under this statute, to justify the termination of parental rights, the state must prove by clear and convincing evidence that a parent has substantially and continuously or repeatedly neglected the child. In re Interest of L.J., J.J., and J.N.J., 220 Neb. 102, 368 N.W.2d 474 (1985).

While incarceration alone is not a basis for termination of parental rights, a parent's incarceration may be considered along with other factors in determining whether parental rights can be terminated based on neglect. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

Under subdivision (2) of this section, the State must establish that the parental neglect required to terminate a parent's rights to a minor child was substantial and continuous or repeated; a handful of incidents, none of which resulted in permanent or serious injury to the children, is insufficient. In re Interest of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).

Evidence supported the juvenile court's finding that the father did not neglect the child when (1) 5 years prior to the termination hearing, the father was sentenced to a jail term of 3 months and (2) throughout the child's life, the father provided continuing care for the child, did not refuse parental care, and worked to improve parenting skills. In re Interest of Deztiny C., 15 Neb. App. 179, 723 N.W.2d 652 (2007).

In regard to subdivision (2) of this section, a finding of abuse or neglect may be supported where the record shows a parent's conduct over the child during the period when the abuse or neglect occurred and multiple injuries or other serious impairment of health has occurred which ordinarily would not occur in the absence of abuse or neglect. In re Interest of Chloe L. and Ethan L., 14 Neb. App. 663, 712 N.W.2d 289 (2006).

Pursuant to subsection (2) of this section, termination of parental rights requires a finding that a parent has substantially and continuously or repeatedly neglected and refused to give the juvenile necessary parental care and protection. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

Pursuant to subsection (2) of this section, lack of proper parental care of one child in a family can be a ground for termination of parental rights with respect to another child of the parents. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

While a decision from the Nebraska Court of Appeals affirming a juvenile court's termination of parental rights may be further reviewed by the Nebraska Supreme Court, under subsection (2) of this section, the Court of Appeals' decision is final for collateral estoppel purposes. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

4. Mental illness or deficiency

Where subdivision (5) of this section is one of multiple statutory grounds alleged to support termination of parental rights, the failure of the trial court to appoint a guardian ad litem for the parent is error, but the error may or may not be prejudicial, depending upon the specific facts of the case. Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014).

Subsection (5) of this section authorizing termination of parental rights for mental illness or mental deficiency means only those mental illnesses or mental deficiencies which render the parents unable to discharge their parental responsibilities. In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000).

Under subsection (5) of this section, when a natural parent suffers from a mental deficiency and cannot be rehabilitated within a reasonable period of time, the best interests of the child require that a final disposition be made without delay. A "mental deficiency", as used in subsection (5) of this section, includes an impairment in capacity such that a parent is unable to profit from instruction and acquire parenting skills. Under subsection (5) of this section, the State must show that termination of parental rights is in the best interests of the children. In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999).

When a natural parent suffers from a mental deficiency and cannot be rehabilitated within a reasonable period of time, the best interests of the children require that a final disposition be made without delay. In re Interest of D.A.B. and J.B., 240 Neb. 653, 483 N.W.2d 550 (1992).

A borderline personality disorder is a mental illness or deficiency for purposes of statute. In re Interest of B.M., 239 Neb. 292, 475 N.W.2d 909 (1991).

A guardian ad litem appointed for a parent pursuant to subsection (5) of this section is entitled to participate fully in the proceeding to terminate parental rights. In re Interest of D.S. and T.S., 236 Neb. 413, 461 N.W.2d 415 (1990).

The parental rights of a parent who is unable to discharge parental duties because of a mental illness or deficiency may be terminated under subdivision (5) of this section, while the parental rights of a parent who is unable to discharge parental duties because of a physical illness or deficiency may be terminated under subdivision (2) or (6) of this section; thus, the statutory scheme for termination of parental rights does not unconstitutionally differentiate between a parent with a mental deficiency and one with a physical deficiency. In re Interest of S.L.P., 230 Neb. 635, 432 N.W.2d 826 (1988).

"Mental deficiency", as used in subdivision (5) of this section, includes an impairment in learning capacity such that one is unable to profit from instruction and acquire parenting skills. In re Interest of D.L.S., 230 Neb. 435, 432 N.W.2d 31 (1988).

Appointment of a guardian ad litem for parents whose parental rights are sought to be terminated under subdivision (5) of this section is mandatory. Failure to appoint a guardian ad litem to protect the interests of such a parent is plain error which requires that the judgment be reversed. In re Interest of M.M., C.M., and D.M., 230 Neb. 388, 431 N.W.2d 611 (1988).

While no absolute definition of the term "mental deficiency" as used in subdivision (5) of this section is adopted, where a personality disorder is manifested by acts of extraordinary violence, the mental condition certainly rises to the level of mental deficiency. In re Interest of J.D.M., 230 Neb. 273, 430 N.W.2d 689 (1988).

Parental rights were properly terminated under subdivision (5) of this section where parents, who were both of limited intellectual ability, were unable to care for their daughter, who was developmentally and physically handicapped and required an extraordinary amount of care. In re Interest of A.M.K., 227 Neb. 888, 420 N.W.2d 718 (1988).

Supreme Court urges appointments of an attorney and of a guardian ad litem under subsection (5) of this section be separated. In re Interest of C.W., 226 Neb. 719, 414 N.W.2d 277 (1987).

Record supported termination of parental rights as in the best interests of the child where the parent was unable due to a mental deficiency to discharge her responsibilities and there existed reasonable grounds to believe that this condition would continue for a prolonged and indefinite period. In re Interest of Fant, 214 Neb. 692, 335 N.W.2d 314 (1983).

A trial court has discretionary authority to appoint a guardian ad litem in termination proceedings for a parent with a mental deficiency, regardless of whether mental illness or deficiency is pled as a ground for termination. In re Interest of Michael B. et al., 8 Neb. App. 411, 594 N.W.2d 674 (1999).

The presence of a mental deficiency in a parent does not preclude the State from seeking, or the courts from granting, termination of parental rights under subsections (2) and (4) of this section. In re Interest of Michael B. et al., 8 Neb. App. 411, 594 N.W.2d 674 (1999).

5. Rehabilitation or reunification plan

Reasonable efforts to reunify a family are required under the juvenile code only when termination is sought under subdivision (6) of this section. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

Reasonable efforts to preserve and reunify a family are required when the State seeks to terminate parental rights under subdivision (6) of this section. But reasonable efforts to reunify the family are required under the juvenile code only when termination is sought under subdivision (6) of this section, not when termination is based on other grounds. In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).

Reasonable efforts to reunify a family are required under the juvenile code only when termination of parental rights is sought under subsection (6) of this section. In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009); In re Interest of Mya C. et al., 23 Neb. App. 383, 872 N.W.2d 56 (2015).

The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to section 43-254, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of this section. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

Pursuant to subsection (2) of this section, termination of parental rights under this subsection does not require proof that a parent has failed to comply with a rehabilitation plan. In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d 549 (2001).

In order to terminate parental rights under subsection (6) of this section, the State must prove by clear and convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child. In order to terminate parental rights under subsection (6) of this section, the State is required to prove that the parents have been provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered plan and have failed to do so. The State is not required to show that noncompliance with a court-ordered rehabilitation plan is willful in order to prove that termination of parental rights should be ordered under subsection (6) of this section. In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999).

Pursuant to subsection (6) of this section, the State need not prove in an action to terminate parental rights, that a parent's failure to comply with a court-ordered rehabilitation plan was willful. The purpose of subsection (6) of this section is to advance the best interests of the child by giving the juvenile court power to terminate parental rights where the grounds for adjudicating the child within section 43-247(3)(a) have not been corrected. Whether a parent is willful or not in his or her noncompliance with a rehabilitation plan is not directly relevant to this purpose. Mother's failure to comply with rehabilitation plan's requirement that she end contact with man who had sexually assaulted one of her children was sufficient evidence for termination of her parental rights under subsection (7) of this section. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).

In order to terminate parental rights pursuant to subsection (6) of this section, the State is required to prove that the parents have been provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered plan and have failed to do so. Fact that parent partially complied with one provision of a rehabilitative plan does not prevent termination of his or her parental rights. In re Interest of L.H. et al., 241 Neb. 232, 487 N.W.2d 279 (1992).

A rehabilitation plan is a court-ordered plan, judicially fashioned and judicially determined. The court may not delegate this authority to evaluators, counselors, social workers, child protection workers, or probation officers. In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992).

In order to terminate parental rights, the requirement is not that all possible alternatives be exhausted, but that reasonable efforts be made to reunite the juvenile and his or her family. In re Interest of S.R., D.R., and B.R., 239 Neb. 871, 479 N.W.2d 126 (1992).

Under subsection (6) of this section, the court is not limited to reviewing the efforts of the parent under the reunification plan last ordered by the court; rather, the court looks at the entire reunification program and the parent's compliance with the various plans involved in the program, as well as any effort not contained within the program which would bring the parent closer to reunification. In re Interest of L.J., M.J., and K.J., 238 Neb. 712, 472 N.W.2d 205 (1991).

A period of 1 year 2 months is a reasonable amount of time for a parent to comply with a plan of rehabilitation. In re Interest of C.E.E., 238 Neb. 260, 469 N.W.2d 782 (1991).

Under subsection (6) of this section, "reasonable efforts, under the direction of the court" means efforts in relation to a court-ordered plan for parental rehabilitation, not an extrajudicial agreement between a parent and an administrative agency. In re Interest of A.H., 237 Neb. 797, 467 N.W.2d 682 (1991).

Under subsection (6) of this section, the fact of participation in certain elements of the court-ordered plan of reunification does not necessarily prevent the court from entering an order of termination where the parent has not made satisfactory progress toward reunification. In re Interest of A.M.Y., F.E.Y., and K.C.Y., 237 Neb. 414, 466 N.W.2d 93 (1991).

Under subsection (6) of this section, there is no requirement that the parent's failure to comply with the plan for rehabilitation be willful. In re Interest of A.B. et al., 236 Neb. 220, 460 N.W.2d 114 (1990).

It is only to terminate parental rights pursuant to subsection (6) of this section that the State is required to prove that the parents have been provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered plan and have failed to do so. In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274 (1990).

A judgment terminating parental rights pursuant to subsection (6) of this section will be affirmed where the State has proved by clear and convincing evidence that (1) the parent has willfully failed to comply, in whole or in part, with a material provision of the rehabilitative plan, and (2) termination of parental rights is in the best interests of the children. In re Interest of L.K.Y. and A.L.Y., 235 Neb. 545, 455 N.W.2d 828 (1990); In re Interest of L.B., A.B., and A.T., 235 Neb. 134, 454 N.W.2d 285 (1990).

Under subsection (6) of this section, participation in a court-ordered plan does not necessarily prevent the court from entering an order of termination where parent made no progress toward rehabilitation. In re Interest of M., 235 Neb. 61, 453 N.W.2d 589 (1990).

Pursuant to subsection (6) of this section, a parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation presents an independent reason justifying termination of parental rights. A judgment terminating parental rights will be affirmed when the State has established by clear and convincing evidence that the parent has willfully failed to comply, in whole or in part, with a material provision of a plan, and termination of parental rights is in the best interests of the children. Where a parent is unable or unwilling to rehabilitate herself within a reasonable time, the best interests of the children require termination of the parental rights. In re Interest of C.C. and E.C., 234 Neb. 218, 450 N.W.2d 392 (1990).

Under subsection (6) of this section, the record supports termination of parental rights where parent willingly failed to comply with reasonable plan of rehabilitation. In re Interest of R.T. and R.T., 233 Neb. 483, 446 N.W.2d 12 (1989).

Regarding parental compliance with a court-ordered rehabilitative plan, under subsection (6) of this section, as a ground for termination of parental rights, the State must prove by clear and convincing evidence that the parent has willfully failed to comply in whole or in part with a reasonable provision material to the rehabilitative objective of the plan and the termination of parental rights is in the best interests of the child. In re Interest of Q.R. and D.R., 231 Neb. 791, 438 N.W.2d 146 (1989).

Under subsection (6) of this section, a juvenile court has the discretionary power to prescribe a reasonable plan for parental rehabilitation to correct the conditions underlying the adjudication that a child is a juvenile within the Nebraska Juvenile Code. This court has held that to terminate parental rights under subsection (6) of this section, the State must prove by clear and convincing evidence that the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and termination of parental rights is in the best interests of the child. In re Interest of P.M.C., 231 Neb. 701, 437 N.W.2d 786 (1989).

A parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation designed to reunite the parent and child presents an independent reason justifying termination of parental rights under subdivision (6) of this section. The state must prove this failure by clear and convincing evidence. In re Interest of P.D., 231 Neb. 608, 437 N.W.2d 156 (1989).

A parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation designed to reunite the parent and child presents an independent reason justifying termination of parental rights under subdivision (6) of this section. In re Interest of D.L.S., 230 Neb. 435, 432 N.W.2d 31 (1988).

Regarding parental noncompliance with a court-ordered rehabilitative plan, under subsection (6) of this section, as a ground for termination of parental rights, the State must prove by clear and convincing evidence that the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and, in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child. In re Interest of A.Z., B.Z., and R.Z., 230 Neb. 291, 430 N.W.2d 901 (1988).

As grounds for termination, the State must prove by clear and convincing evidence that the parent has willfully failed to comply with a reasonable provision material to the rehabilitative objective of the plan, and, in addition to the parent's noncompliance, termination is in the best interests of the child. In re Interest of L.O. and B.O., 229 Neb. 889, 429 N.W.2d 388 (1988).

Regarding parental noncompliance with a court-ordered rehabilitation plan under subsection (6) of this section as a ground for termination of parental rights, the State must prove by clear and convincing evidence that (1) the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) termination of parental rights is in the best interests of the child. In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).

When a rehabilitation plan is implemented, the plan must be reasonable and conducted under the direction of the juvenile court before failure to comply with the plan can be an independent reason for termination. In re Interest of K.L.N. and M.J.N., 225 Neb. 595, 407 N.W.2d 189 (1987).

The primary consideration in termination proceedings is the best interests of the child and, while termination of parental rights should be considered as a last resort, this section requires that the best interests of the child and evidence of fault or neglect be considered together in reaching such a determination. The failure to comply with a court-ordered plan of rehabilitation, where a parent is ordered to make reasonable efforts to rehabilitate, presents an independent reason justifying termination of parental rights. In re Interest of J.W., 224 Neb. 897, 402 N.W.2d 671 (1987).

The failure of a parent to follow a rehabilitation plan which is not conducted under the direction of the court is not sufficient reason to terminate parental rights under this statute. In re Interest of M.L.B., 221 Neb. 396, 377 N.W.2d 521 (1985).

Parental rights terminated of mother who failed to comply with a plan of rehabilitation and who suffered from a personality disorder likely to last for an indefinite period. In re Interest of R.L.T., 221 Neb. 251, 376 N.W.2d 310 (1985).

The state need not show harm to the child in order to terminate parental rights. The failure of the parent to follow a plan of rehabilitation is sufficient grounds for termination. In re Interest of S.P., N.P., and L.P., 221 Neb. 165, 375 N.W.2d 616 (1985).

The trial court did not abuse its discretion by terminating the parental rights of a parent who failed to rehabilitate herself within a reasonable time after the adjudicative hearing. In re Interest of S.W., 220 Neb. 734, 371 N.W.2d 726 (1985).

The 15-month condition contained in subsection (7) of this section provides a reasonable timetable for parents to rehabilitate themselves. In re Interest of Jay'Oni W. et al., 31 Neb. App. 302, 979 N.W.2d 290 (2022).

In order to terminate parental rights under subdivision (6) of this section, the State must prove by clear and convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

Reasonable efforts to reunify a family are required under the juvenile code only when termination is sought under subdivision (6) of this section. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

Pursuant to subsection (6) of this section, termination of parental rights requires a finding that following a determination that the juvenile is one as described in subsection (3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court, have failed to correct the conditions leading to the determination. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

6. Out-of-home placement

Out-of-home placement is itself defined by the Legislature as an independent ground for termination, since children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

Subdivision (7) of this section operates mechanically and, unlike the other subdivisions of this section, does not require the State to adduce evidence of any specific fault on the part of a parent. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

Termination based on the ground that a child has been in out-of-home placement for 15 of the past preceding 22 months is not in a child's best interests when the record demonstrates that a parent is making efforts toward reunification and has not been given a sufficient opportunity for compliance with a reunification plan. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

The period of 15 out of 22 months' out-of-home placement as a ground for termination of parental rights was set by the Legislature as a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum degree of fitness. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

Time spent by juveniles in a guardianship placement counted toward time spent in an out-of-home placement under subsection (7) of this section. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).

The fact that a child has been placed outside the home for 15 or more of the most recent 22 months does not demonstrate parental unfitness. The placement of a child outside the home for 15 or more of the most recent 22 months under subsection (7) of this section merely provides a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

For the purpose of a petition to terminate parental rights, the placement of a child outside the home for 15 or more of the most recent 22 months under subsection (7) of this section merely provides a guideline for what would be a reasonable time for parents to rehabilitate themselves to a minimum level of fitness. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

The fact that a child has been placed outside the home for 15 or more of the most recent 22 months under subsection (7) of this section does not demonstrate parental unfitness for the purpose of a termination of parental rights. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

In a juvenile proceeding to terminate parental rights, the evidence adduced to prove termination on any statutory ground other than subsection (7) of this section is highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse. In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).

Subsection (7) of this section operates mechanically and, unlike the other subsections of this section, does not require the State to adduce evidence of any specific fault on the part of a parent. Thus, it is in the context of analyzing the best interests of the juvenile that courts must respect a parent's commanding interest in the accuracy and justice of the decision to terminate parental rights. Where termination of parental rights is sought solely pursuant to subsection (7), proof that termination is nonetheless in a juvenile's best interests will, necessarily, require clear and convincing evidence of circumstances as compelling and pertinent to a child's best interests as those enumerated in the other subsections of this section. In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).

Pursuant to subsection (7) of this section, termination based on the ground that a child has been in out-of-home placement for 15 of the preceding 22 months is not in a child's best interests when the record demonstrates that a parent is making efforts toward reunification and has not been given a sufficient opportunity for compliance with a reunification plan. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

The 15-month condition set forth in subsection (7) of this section serves the purpose of providing a reasonable timetable for parents to rehabilitate themselves. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

Subsection (7) of this section operates mechanically and does not require the State to adduce evidence of any specific fault on the part of the parent. In re Interest of Jay'Oni W. et al., 31 Neb. App. 302, 979 N.W.2d 290 (2022).

Subdivision (7) of this section operates mechanically and does not require the State to adduce evidence of any specific fault on the part of the parent. In re Interest of Destiny H. et al., 30 Neb. App. 885, 974 N.W.2d 343 (2022).

Generally, when termination is sought under subsections of this section other than subsection (7), the evidence adduced to prove the statutory grounds for termination will also be highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse; however, this is not always the case, as statutory grounds are based on a parent's past conduct, but the best interests element focuses on the future well-being of the child. In re Interest of Mya C. et al., 23 Neb. App. 383, 872 N.W.2d 56 (2015).

Generally, when termination of parental rights is sought under subsections of this section other than subsection (7), the evidence adduced to prove the statutory grounds for termination will also be highly relevant to the best interests of the juvenile. In re Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012).

Pursuant to subsection (7) of this section, termination of parental rights requires a finding that the juvenile has been in an out-of-home placement for 15 or more months of the most recent 22 months. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

7. Aggravated circumstances

The examples provided under subsection (9) of this section are not an exhaustive list. Aggravated circumstances also exist when a child suffers severe, intentional physical abuse. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012).

Aggravated circumstances exist when a child suffers severe, intentional physical abuse. In re Interest of Ky'Ari J., 29 Neb. App. 124, 952 N.W.2d 715 (2020).

Where the circumstances created by the parent's conduct create an unacceptably high risk to the health, safety, and welfare of the child, they are aggravated. In re Interest of Ky'Ari J., 29 Neb. App. 124, 952 N.W.2d 715 (2020).

Subdivision (9) of this section allows for terminating parental rights when the parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

Whether aggravated circumstances under subdivision (9) of this section exist is determined on a case-by-case basis. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276 (2018).

Under subdivision (9) of this section, the "aggravated circumstances" required for terminating parental rights are based on severe, intentional actions on the part of the parent; a single act of negligent conduct is insufficient. In re Interest of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).

When parental rights are terminated based on the parent subjecting the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse, pursuant to subsection (9) of this section, a prior adjudication order is not required. In re Interest of Gavin S. & Jordan S., 23 Neb. App. 401, 873 N.W.2d 1 (2015).

8. Appeal

A parent's failure to appeal from an adjudication order, dispositional order, or other final, appealable order leading to the termination of parental rights does not preclude an appellate court from reviewing the proceedings for a denial of due process in an appeal from a termination order. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

The right to appeal from orders of a county court sitting as a juvenile court, insofar as that right is vested in the child's custodian, is vested only in individuals or entities having legal custody of such a child, and not in those persons having only possession of the child. In re Interest of S.R., 217 Neb. 528, 352 N.W.2d 141 (1984).

If an appellate court determines that the lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds, the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground. In re Interest of Giavonna G., 23 Neb. App. 853, 876 N.W.2d 422 (2016).

In regard to subdivision (10) of this section, conviction and sentence are not considered final judgments until after appeal, if there is indeed an appeal. In re Interest of Jamie M., 14 Neb. App. 763, 714 N.W.2d 780 (2006).

Appellate courts must be particularly diligent in the de novo review of whether termination of parental rights is in the juvenile's best interests in cases where termination is sought only pursuant to subdivision (7) of this section, and the record must contain clear and convincing evidence to support the best interests determination. In re Interest of Skye W. & McKenzie W., 14 Neb. App. 74, 704 N.W.2d 1 (2006).

9. Constitutional rights

Showing that termination of parental rights is in the best interests of the child is necessarily a particularly high bar, since a parent's right to raise his or her children is constitutionally protected. The Due Process Clause of the U.S. Constitution would be offended if a state were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

That the foster parents might provide a higher standard of living does not defeat the parent's right to maintain the constitutionally protected relationship with his or her child. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

So long as a parent was afforded due process of law, a defect during the adjudication phase does not preclude consideration of termination of parental rights. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).

The interest of the 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. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

Whether termination of parental rights is in a child's best interests is subject to the overriding recognition that the relationship between parent and child is constitutionally protected. In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

This section is not unconstitutional; adequate safeguards are provided to ensure that parental rights are not terminated based solely upon the length of time children are in an out-of-home placement. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Phyllisa B., 265 Neb. 53, 654 N.W.2d 738 (2002).

An incarcerated parent does not need to be physically present at a hearing to terminate parental rights, so long as the parent is afforded procedural due process. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

Whether a parent who is incarcerated or otherwise confined in custody has been afforded procedural due process for a hearing to terminate parental rights is within the discretion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

A defective adjudication does not preclude a termination of parental rights under subsections (1) through (5) of this section, because no adjudication is required to terminate pursuant to those subsections, as long as due process safeguards are met. In re Interest of Keisha G., 21 Neb. App. 472, 840 N.W.2d 562 (2013).

In a hearing on the termination of parental rights without a prior adjudication hearing, where such termination is sought under subsections (1) through (5) of this section, such proceedings must be accompanied by due process safeguards. In re Interest of Aaliyah M. et al., 21 Neb. App. 63, 837 N.W.2d 98 (2013).

If a parent has been afforded procedural due process for a hearing to terminate parental rights, allowing a parent who is incarcerated or otherwise confined in custody of a government to attend the termination hearing is within the discretion of the trial court, whose opinion on appeal will be upheld in the absence of an abuse of discretion. In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).

Parental physical presence is unnecessary for a hearing to terminate parental rights, provided that the parent has been afforded procedural due process for the hearing. In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).

In a hearing on the termination of parental rights without a prior adjudication, where such termination is sought under subsections (1) through (5) of this section, such proceedings must be accompanied by due process safeguards, as statutory provisions cannot abrogate constitutional rights. In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001).

Termination of parental rights is protected by due process under the U.S. and Nebraska Constitutions, and in the absence of a valid waiver by all parties to such proceedings, a verbatim transcript of those proceedings shall be made and preserved in the separate juvenile court. In re Interest of M.W. and R.W., 1 Neb. App. 378, 497 N.W.2d 396 (1992).

10. Miscellaneous

Parental obligation requires a continuing interest in the children and a genuine effort to maintain communication and association with the children. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).

Although a therapist testified that the mother and child had a bond and recommended that a relationship between them continue, the State adduced clear and convincing evidence that termination of the mother's parental rights was in the child's best interests. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016).

Termination of a mother's parental rights was in her children's best interests where there was evidence of years of instability and neglect, which could not be overcome by the mother's recent period of stability. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).

The "beyond a reasonable doubt" standard in subsection (6) of section 43-1505 does not extend to this section's best interests element. Instead, the State must prove by clear and convincing evidence that terminating parental rights is in the child's best interests; this need not include testimony of a qualified expert witness. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

The State cannot prove that termination of parental rights is in a child's best interests by implementing a case plan that precludes a parent's compliance. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

The fact that children benefit from foster placement after they are removed from the custody of a natural parent does not lend support to an argument that termination of parental rights is not in their best interests. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights. A significant piece of evidence bearing on the issue of whether termination of parental rights is in the best interests of the child is the fact that while in foster care, the child's "arrested state of development" at the time of removal from custody is being reversed. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. The concept of permanency is not simply a "buzzword", but, rather, a recognition that when there is no reasonable expectation that a natural parent will fulfill his or her responsibility to a child, the child should be given an opportunity to live with an adult who has demonstrated a willingness and ability to assume that responsibility and has a permanent legal obligation to do so. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).

Through the plain language of this section, the Legislature has demonstrated its intent that under certain circumstances, prior court action or an adjudication may be required before parental rights can be terminated. The plain and ordinary meaning of this section and section 43-291, taken together, is that parental rights may be terminated in an original proceeding. In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).

Pursuant to subsection (3) of this section, a court cannot deny a natural parent custody based on the fact that he or she has limited resources or financial problems, or because the parent's lifestyle is different or unusual. Pursuant to subsection (4) of this section, the children need not be present while the parent commits acts described in the section for this section to apply. Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998).

In the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code, termination of parental rights is permissible when the basis for such termination is proved by clear and convincing evidence. In re Interest of M.P., 238 Neb. 857, 472 N.W.2d 432 (1991); In re Interest of C.C., 226 Neb. 263, 411 N.W.2d 51 (1987); In re Interest of T.C., 226 Neb. 116, 409 N.W.2d 607 (1987).

A juvenile court may terminate parental rights under the various grounds specified in subsections (1) through (5) of this section without providing the parent with a reasonable opportunity to rehabilitate himself or herself. In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274 (1990).

Subsection (6) of this section does not require the court to proceed under that subsection whenever a determination has been made under section 43-247; the court may terminate parental rights when it appears that any one of the six conditions under this section has been met. In re Interest of J.A. and T.A., 229 Neb. 271, 426 N.W.2d 277 (1988).

Clear and convincing evidence was before the trial court to show that reasonable efforts, under the court's direction, had failed to correct the conditions which had led to the determination that the child in question was a child as defined in section 43-247(3)(a). In re Interest of J.W., 224 Neb. 897, 402 N.W.2d 671 (1987).

The juvenile court may consider the following factors when determining whether to allow an incarcerated parent to be present at a hearing to terminate parental rights: (1) the anticipated delay, (2) the need for prompt disposition, (3) the length of time during which the case has been pending, (4) the expense of transportation, (5) the inconvenience or detriment to the parties or witnesses, (6) the potential danger or security risk, (7) the availability of the parent's testimony through means other than physical attendance, and (8) the best interests of the child. In re Interest of Joezia P., 30 Neb. App. 281, 968 N.W.2d 101 (2021).

If an appellate court determines that a lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds set forth in this section, the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

In Nebraska statutes, the bases for termination of parental rights are codified in this section. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

This section provides 11 separate conditions, any one of which can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018).

Without other evidence of a parent's neglect of his or her children, incarceration alone is insufficient to justify termination of parental rights under subdivision (2) of this section. In re Interest of Lizabella R., 25 Neb. App. 421, 907 N.W.2d 745 (2018).

The State failed to prove that the parent's drug use was detrimental to the child, and thus, there was insufficient evidence to support a termination of parental rights under subsection (4) of this section. In re Interest of Keisha G., 21 Neb. App. 472, 840 N.W.2d 562 (2013).

The Indian Child Welfare Act's requirement of "active efforts" is separate and distinct from the "reasonable efforts" provision of subsection (6) of this section and therefore requires the State to plead active efforts by the State to prevent the breakup of the family. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009).

The plain language of subsection (10) of this section does not require a criminal conviction or proof beyond a reasonable doubt that a parent has committed voluntary manslaughter or murder of his or her child, but merely clear and convincing evidence that the parent "committed" murder or voluntary manslaughter of his or her child. In re Interest of Anthony V., 12 Neb. App. 567, 680 N.W.2d 221 (2004).

Although there may have been no prior juvenile court action, including adjudication, the juvenile court acquires jurisdiction to terminate parental rights when a motion to terminate parental rights containing the grounds for termination is filed under subsections (1) through (5) of this section. In re Interest of Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001).

The essence of issue preclusion is that once parents have litigated their treatment of their child's sibling in an adjudication proceeding, they are not entitled to another opportunity to litigate the same issue in a subsequent proceeding involving the child under subsection (2) of this section. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

The State may use factual findings from a sibling's case, when proved true by clear and convincing evidence, as a basis for termination of parental rights to a sibling. In re Interest of Jaden H., 10 Neb. App. 87, 625 N.W.2d 218 (2001).

Section 43-1505 provides specific statutory requirements for proving a case for termination of parental rights in a juvenile court action involving an Indian child, and the petition for termination of parental rights must include sufficient allegations of the requirements of section 43-1505 as well as this section to survive a demurrer. In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001).

In order to justify termination of parental rights pursuant to subsection (6) of this section, the State must prove by clear and convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable provision material to the rehabilitation objective of the plan and (2) that termination of parental rights is in the best interests of the child. In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

Parental incarceration is a factor which may be considered in determining whether parental rights should be terminated. A parent's failure to change a lifestyle of chemical dependency may constitute neglect under subsection (2) of this section. In re Interest of Joshua M. et al., 7 Neb. App. 872, 587 N.W.2d 131 (1998).

A parent's parental rights may not be terminated pursuant to the provisions of this section based solely upon the parent's refusal to waive his or her constitutional and statutory protections against self-incrimination. In re Interest of Clifford M. et al., 6 Neb. App. 754, 577 N.W.2d 547 (1998).

In the absence of an adjudication petition and hearing in compliance with section 43-247, an order purporting to terminate parental rights pursuant to this section is a nullity. In re Interest of Joelyann H., 6 Neb. App. 472, 574 N.W.2d 185 (1998).

43-292.01. Termination of parental rights; appointment of guardian ad litem; when.

When termination of the parent-juvenile relationship is sought under subdivision (5) of section 43-292, the court shall appoint a guardian ad litem for the alleged incompetent parent. The court may, in any other case, appoint a guardian ad litem, as deemed necessary or desirable, for any party. The guardian ad litem shall be paid a reasonable fee set by the court and paid from the general fund of the county.

Source:Laws 1998, LB 1041, § 28.

Annotations

Where section 43-292(5) is one of multiple statutory grounds alleged to support termination of parental rights, the failure of the trial court to appoint a guardian ad litem for the parent is error, but the error may or may not be prejudicial, depending upon the specific facts of the case. Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014).

A guardian ad litem appointed for a parent is entitled to participate fully in the proceeding to terminate parental rights. In re Interest of D.S. and T.S., 236 Neb. 413, 461 N.W.2d 415 (1990).

Appointment of a guardian ad litem for parents whose parental rights are sought to be terminated under subdivision (5) of section 43-292 is mandatory. Failure to appoint a guardian ad litem to protect the interests of such a parent is plain error which requires that the judgment be reversed. In re Interest of M.M., C.M., and D.M., 230 Neb. 388, 431 N.W.2d 611 (1988).

Supreme Court urges appointments of an attorney and of a guardian ad litem be separated. In re Interest of C.W., 226 Neb. 719, 414 N.W.2d 277 (1987).

A guardian ad litem appointed for a parent pursuant to this section is entitled to participate fully in the proceeding to terminate parental rights. In re Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012).

Appointment of a guardian ad litem for a parent who is allegedly incompetent because of mental illness or mental deficiency is mandatory, and the failure to appoint a guardian ad litem is plain error which requires reversal of an order terminating the parent's rights. In re Interest of Presten O., 18 Neb. App. 259, 778 N.W.2d 759 (2010).

43-292.02. Termination of parental rights; state; duty to file petition; when.

(1) A petition shall be filed on behalf of the state to terminate the parental rights of the juvenile's parents or, if such a petition has been filed by another party, the state shall join as a party to the petition, and the state shall concurrently identify, recruit, process, and approve a qualified family for an adoption of the juvenile, if:

(a) A juvenile has been in foster care under the responsibility of the state for fifteen or more months of the most recent twenty-two months; or

(b) A court of competent jurisdiction has determined the juvenile to be an abandoned infant or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit murder, or aided or abetted voluntary manslaughter of the juvenile or another child of the parent, or committed a felony assault that has resulted in serious bodily injury to the juvenile or another minor child of the parent. For purposes of this subdivision, infant means a child eighteen months of age or younger.

(2) A petition shall not be filed on behalf of the state to terminate the parental rights of the juvenile's parents or, if such a petition has been filed by another party, the state shall not join as a party to the petition if the sole factual basis for the petition is that (a) the parent or parents of the juvenile are financially unable to provide health care for the juvenile or (b) the parent or parents of the juvenile are incarcerated. The fact that a qualified family for an adoption of the juvenile has been identified, recruited, processed, and approved shall have no bearing on whether parental rights shall be terminated.

(3) The petition is not required to be filed on behalf of the state or if a petition is filed the state shall not be required to join in a petition to terminate parental rights or to concurrently find a qualified family to adopt the juvenile under this section if:

(a) The child is being cared for by a relative;

(b) The Department of Health and Human Services has documented in the case plan or permanency plan, which shall be available for court review, a compelling reason for determining that filing such a petition would not be in the best interests of the juvenile; or

(c) The family of the juvenile has not had a reasonable opportunity to avail themselves of the services deemed necessary in the case plan or permanency plan approved by the court if reasonable efforts to preserve and reunify the family are required under section 43-283.01.

(4) Except as otherwise provided in the Nebraska Indian Child Welfare Act, if a child is conceived by the victim of a sexual assault, a petition for termination of parental rights of the perpetrator shall be granted if such termination is in the best interests of the child and (a) the perpetrator has been convicted of or pled guilty or nolo contendere to sexual assault of the child’s birth parent under section 28-319 or 28-320 or a law in another jurisdiction similar to either section 28-319 or 28-320 or (b) the perpetrator has fathered the child or given birth to the child as a result of such sexual assault.

Source:Laws 1998, LB 1041, § 29; Laws 2017, LB289, § 18.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

Pursuant to the second sentence in subsection (2) of this section, a juvenile court, when deciding whether to terminate parental rights, should not consider that an adoptive family has been identified. In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007).

Pursuant to subsection (3)(b) of this section, an exception hearing must be conducted after the child has been in foster care for 15 of the most recent 22 months. In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).

For termination of parental rights, this section's "identification and approval of an adoptive family" requirement is not a requirement for termination. In re Interest of Georgina V. & Manuel V., 9 Neb. App. 791, 620 N.W.2d 130 (2000).

43-292.03. Termination of parental rights; state; Department of Health and Human Services; duties.

(1) Within thirty days after the fifteen-month period under subsection (1) of section 43-292.02, the court shall hold a hearing on the record and shall make a determination on the record as to whether there is an exception under subsection (3) of section 43-292.02 in this particular case. If there is no exception, the state shall proceed as provided in subsection (1) of section 43-292.02.

(2) The Department of Health and Human Services shall submit on a timely basis, to the court in which the petition to place the juvenile in an out-of-home placement was filed and to the county attorney who filed the petition, a list of the name of each juvenile who has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months.

Source:Laws 1998, LB 1041, § 30.

Annotations

An order entered pursuant to this section referring the matter to the State for filing of a petition to terminate parental rights is not a final, appealable order. In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002).

Failure of the juvenile court to conduct an exception hearing pursuant to this section does not deny a parent due process of law. In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d 549 (2001).

43-293. Termination of parental rights; effect; adoption; consent.

When the parental rights have been terminated under section 43-292 and the care of the juvenile is awarded to the Department of Health and Human Services, the department shall have authority to consent to the legal adoption of such juvenile and no other consent shall be required to authorize any court having jurisdiction to enter a legal decree of adoption of such juvenile. When the care of such juvenile is awarded to an individual or association and the parental rights have been terminated by the juvenile court, such individual or association may consent, only when authorized by order of such juvenile court, to the legal adoption of such juvenile and no other consent shall be required to authorize any court having jurisdiction to enter a legal decree of adoption of such juvenile. An order terminating the parent-juvenile relationship shall divest the parent and juvenile of all legal rights, privileges, duties, and obligations with respect to each other and the parents shall have no rights of inheritance with respect to such juvenile. The order terminating parental rights shall be final and may be appealed in the same manner as other final judgments of a juvenile court.

Source:Laws 1981, LB 346, § 49; Laws 1996, LB 1044, § 144.

Cross References

Adoption of child, substitute consents, see sections 43-105 and 43-906.

Annotations

Under the Nebraska Juvenile Code, in order to terminate parental rights, the court must take judicial action. In re Interest of Donald B. & Devin B., 304 Neb. 239, 933 N.W.2d 864 (2019).

When parental rights of the surviving parent have been terminated under section 43-295, that parent's parents lack standing to request visitation rights. In re Interest of Ditter, 212 Neb. 855, 326 N.W.2d 675 (1982).

According to this section, an order terminating the parent‑juvenile relationship shall divest the parent and juvenile of all legal rights, privileges, duties, and obligations with respect to each other. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

43-294. Termination of parental rights; custodian; rights; obligations.

The custodian appointed by a juvenile court shall have charge of the person of the juvenile and the right to make decisions affecting the person of the juvenile, including medical, dental, surgical, or psychiatric treatment, except that consent to a juvenile marrying or joining the armed forces of the United States may be given by a custodian, other than the Department of Health and Human Services, with approval of the juvenile court, or by the department, as to juveniles in its custody, without further court authority. The authority of a custodian appointed by a juvenile court shall terminate when the individual under legal custody reaches nineteen years of age, is legally adopted, or the authority is terminated by order of the juvenile court. When an adoption has been granted by a court of competent jurisdiction as to any such juvenile, such fact shall be reported immediately by such custodian to the juvenile court. If the adoption is denied the jurisdiction over the juvenile shall immediately revert to the court which authorized placement of the juvenile for adoption. Any association or individual receiving the care or custody of any such juvenile shall be subject to visitation or inspection by the Department of Health and Human Services, or any probation officer of such court or any person appointed by the court for such purpose, and the court may at any time require from such association or person a report or reports containing such information or statements as the judge shall deem proper or necessary to be fully advised as to the care, maintenance, and moral and physical training of the juvenile, as well as the standing and ability of such association or individual to care for such juvenile. The custodian so appointed by the court shall have standing as a party in that case to file any pleading or motion, to be heard by the court with regard to such filings, and to be granted any review or relief requested in such filings consistent with Chapter 43, article 2.

Source:Laws 1981, LB 346, § 50; Laws 1984, LB 845, § 32; Laws 1996, LB 1044, § 145.

43-295. Juvenile court; continuing jurisdiction; exception.

Except when the juvenile has been legally adopted, the jurisdiction of the court shall continue over any juvenile brought before the court or committed under the Nebraska Juvenile Code and the court shall have power to order a change in the custody or care of any such juvenile if at any time it is made to appear to the court that it would be for the best interests of the juvenile to make such change.

Source:Laws 1981, LB 346, § 51; Laws 1985, LB 447, § 27.

Annotations

A juvenile court, except where an adjudicated child has been legally adopted, may always order a change in the juvenile's custody or care when the change is in the best interests of the juvenile. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).

A separate juvenile court retains jurisdiction to order a temporary change in custody if it is in the child's best interests. In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).

Any order regarding the disposition of a juvenile pending the resolution of an appeal of the adjudication can only be made on a temporary basis upon a finding by the court that such disposition would be in the best interests of the juvenile. In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).

The exercise of a separate juvenile court's jurisdiction pending an appeal must be determined by the facts of each case. Pending an appeal from an adjudication, the juvenile court does not have the power to enter a permanent dispositional order. In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).

When parental rights of the surviving parent have been terminated under this section, that parent's parents lack standing to request visitation rights. In re Interest of Ditter, 212 Neb. 855, 326 N.W.2d 675 (1982).

While an appeal is pending, this section provides for the juvenile court's continuing jurisdiction over the custody or care of the child, which includes visitation. In re Interest of Angeleah M. & Ava M., 23 Neb. App. 324, 871 N.W.2d 49 (2015).

The continuing jurisdiction of a juvenile court under this section does not include the power to terminate parental rights pending an appeal. In re Interest of Joshua M., et al., 4 Neb. App. 659, 548 N.W.2d 348 (1996).

43-296. Associations receiving juveniles; supervision by Department of Health and Human Services; certificate; reports; statements.

All associations receiving juveniles under the Nebraska Juvenile Code shall be subject to the same visitation, inspection, and supervision by the Department of Health and Human Services as are public charitable institutions of this state, and it shall be the duty of the department to pass annually upon the fitness of every such association as may receive or desire to receive juveniles under the provisions of such code. Upon the department being satisfied that such association is competent and has adequate facilities to care for such juveniles, it shall issue to such association a certificate to that effect, which certificate shall continue in force for one year unless sooner revoked by the department. No juvenile shall be committed to any such association which has not received such a certificate within the fifteen months immediately preceding the commitment. The court may at any time require from any association receiving or desiring to receive juveniles under the provisions of the Nebraska Juvenile Code such reports, information, and statements as the judge shall deem proper and necessary for his or her action, and the court shall in no case be required to commit a juvenile to any association whose standing, conduct, or care of juveniles or ability to care for the same is not satisfactory to the court.

Source:Laws 1981, LB 346, § 52; Laws 1985, LB 447, § 28; Laws 1996, LB 1044, § 146; Laws 2012, LB1160, § 11; Laws 2013, LB222, § 6; Laws 2017, LB417, § 5.

Cross References

Department of Health and Human Services, supervisory powers, see section 43-707.

43-297. Juveniles in need of assistance; placement with association or institution; agreements; effect.

It shall be lawful for the parent, guardian, or other person having the right to dispose of a juvenile defined in subdivision (3)(a) of section 43-247 to enter into an agreement with any association or institution incorporated under any public or private law of this state or any other state, for the purpose of aiding, caring for, or placing such juveniles in homes and, subject to approval as provided in this section, to surrender such juveniles to such association or institution, to be taken and cared for by such association or institution, or put into a family home. Such agreement may contain any and all proper stipulations to that end and may authorize the association or institution by its attorney or agent to appear in any proceeding for the legal adoption of such juvenile, and consent to such juvenile's adoption; and the order of the court, made upon such consent, shall be binding upon the juvenile and his or her parents or guardian, or other person, the same as if such person were personally in court and consented thereto, whether made party to the proceeding or not. All the publication or notice necessary for the adoption of any such juveniles shall be that the institution or parties having charge of such juveniles by court decree, or to whom a relinquishment of the juvenile was given, shall know that such legal adoption is being made.

Source:Laws 1981, LB 346, § 53.

43-297.01. Office of Probation Administration; duties; initial placement and level of care; court order; review; notice of placement change; hearing; exception; foster care placement; participation in proceedings.

(1) Following an adjudication, whenever any juvenile is placed on juvenile probation subject to the supervision of a probation officer, the Office of Probation Administration is deemed to have placement and care responsibility for the juvenile.

(2) The court shall order the initial placement and level of care for the juvenile placed on juvenile probation. Prior to determining the placement and level of care for a juvenile, the court may solicit a recommendation from the Office of Probation Administration. The status of each juvenile placed out-of-home shall be reviewed periodically, but not less than once every six months by the court in person, by video, or telephonically. Periodic reviews shall assess the juvenile's safety and the continued necessity and appropriateness of placement, ensure case plan compliance, and monitor the juvenile's progress. The court shall determine whether an out-of-home placement made by the office is in the best interests of the juvenile. The office shall provide all interested parties with a copy of any report filed with the court by the office pursuant to this subsection.

(3) The Office of Probation Administration may transition a juvenile to a less restrictive placement or to a placement which has the same level of restriction as the current placement. In order to make a placement change under this section, the office shall file a notice of placement change with the court and shall send copies of the notice to all interested parties at least seven days before the change of placement. The court, on its own motion, or upon the filing of an objection to the change by an interested party, may order a hearing to review such a change in placement and may order that the change be stayed pending the outcome of the hearing on the objection.

(4) The Office of Probation Administration may make an immediate change in placement without court approval only if the juvenile is in a harmful or dangerous situation. Approval of the court shall be sought within twenty-four hours after making the change in placement or as soon thereafter as possible. The office shall provide all interested parties with a copy of any report filed with the court by the office pursuant to this subsection.

(5) Whenever the court places a juvenile in a foster care placement as defined in section 43-1301, the Foster Care Review Office or designated local foster care review board may participate in proceedings concerning the juvenile as provided in section 43-1313 and notice shall be given as provided in section 43-1314.

(6) Any written findings or recommendations of the Foster Care Review Office or the designated local foster care review board with regard to a juvenile in a foster care placement submitted to a court having jurisdiction over such juvenile shall be admissible in any proceeding concerning such juvenile if such findings or recommendations have been provided to all other parties of record.

(7) Nothing in this section prevents the court on an ex parte basis from approving an immediate change in placement upon good cause shown.

Source:Laws 2014, LB464, § 23; Laws 2015, LB265, § 5.

43-298. Commitment of juvenile; religious preference considered.

The court in committing juveniles under the Nebraska Juvenile Code shall place them as far as practicable in the care and custody of some individual holding the same religious belief as the parents of the juvenile or with some association which is controlled by persons of like religious faith of the parents of the juvenile.

Source:Laws 1981, LB 346, § 54; Laws 1985, LB 447, § 29.

43-299. Code, how construed.

Nothing in the Nebraska Juvenile Code shall be construed to repeal any portion of the act to aid the youth rehabilitation and treatment centers for juveniles.

Source:Laws 1981, LB 346, § 55; Laws 1985, LB 447, § 30; Laws 1994, LB 988, § 23.

Cross References

Youth rehabilitation and treatment centers, see section 43-407.

43-2,100. Department of Health and Human Services; acceptance of juveniles for observation and treatment; authorized.

The Department of Health and Human Services may receive any juvenile for observation and treatment from any public institution other than a state institution or from any private or charitable institution or person having legal custody thereof upon such terms as such department may deem proper.

Source:Laws 1981, LB 346, § 56; Laws 1996, LB 1044, § 147.

43-2,101. Costs of transporting juvenile to department; payment by county; when.

Unless otherwise ordered by the court pursuant to section 43-290, each county shall bear all the expenses incident to the transportation of each juvenile from such county to the Department of Health and Human Services, together with such fees and costs as are allowed by law in similar cases. The fees, costs, and expenses shall be paid from the county treasury upon itemized vouchers certified by the judge of the juvenile court.

Source:Laws 1981, LB 346, § 57; Laws 1987, LB 638, § 8; Laws 1996, LB 1044, § 148.

43-2,102. Repealed. Laws 2010, LB 800, § 40.

43-2,103. Repealed. Laws 2010, LB 800, § 40.

43-2,104. Repealed. Laws 2010, LB 800, § 40.

43-2,105. Repealed. Laws 2010, LB 800, § 40.

43-2,106. Proceeding in county court sitting as juvenile court; jurisdiction; appeals.

When a juvenile court proceeding has been instituted before a county court sitting as a juvenile court, the original jurisdiction of the county court shall continue until the final disposition thereof and no appeal shall stay the enforcement of any order entered in the county court. After appeal has been filed, the appellate court, upon application and hearing, may stay any order, judgment, or decree on appeal if suitable arrangement is made for the care and custody of the juvenile. The county court shall continue to exercise supervision over the juvenile until a hearing is had in the appellate court and the appellate court enters an order making other disposition. If the appellate court adjudges the juvenile to be a juvenile meeting the criteria established in subdivision (1), (2), (3), or (4) of section 43-247, the appellate court shall affirm the disposition made by the county court unless it is shown by clear and convincing evidence that the disposition of the county court is not in the best interest of such juvenile. Upon determination of the appeal, the appellate court shall remand the case to the county court for further proceedings consistent with the determination of the appellate court.

Source:Laws 1981, LB 346, § 63; Laws 1986, LB 529, § 48; Laws 1989, LB 182, § 17; Laws 1991, LB 732, § 103; Laws 1994, LB 1106, § 7.

Annotations

Disposition order entered while child's adjudication order pending on appeal went beyond exercise of "supervision" and was outside county court's authority. In re Interest of Andrew H. et al., 5 Neb. App. 716, 564 N.W.2d 611 (1997).

43-2,106.01. Judgments or final orders; appeal; parties; cost.

(1) Any final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals. The appellate court shall conduct its review in an expedited manner and shall render the judgment and write its opinion, if any, as speedily as possible.

(2) An appeal may be taken by:

(a) The juvenile;

(b) The guardian ad litem;

(c) The juvenile's parent, custodian, or guardian. For purposes of this subdivision, custodian or guardian shall include, but not be limited to, the Department of Health and Human Services, an association, or an individual to whose care the juvenile has been awarded pursuant to the Nebraska Juvenile Code; or

(d) The county attorney or petitioner, except that in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy, an appeal of such issues may only be taken by exception proceedings pursuant to sections 29-2317 to 29-2319.

(3) In all appeals from the county court sitting as a juvenile court, the judgment of the appellate court shall be certified without cost to the juvenile court for further proceedings consistent with the determination of the appellate court.

Source:Laws 1959, c. 189, § 11, p. 686; Laws 1972, LB 1305, § 1; R.S.1943, (1978), § 43-238; Laws 1981, LB 346, § 83; Laws 1989, LB 182, § 18; Laws 1991, LB 732, § 104; Laws 1992, LB 360, § 11; R.S.Supp.,1992, § 43-2,126; Laws 1994, LB 1106, § 6; Laws 1996, LB 1044, § 149; Laws 2010, LB800, § 25.

Annotations

1. Jeopardy

2. Standing to appeal

3. Miscellaneous

1. Jeopardy

Application of subsection (2)(d) of this section turns on whether the juvenile has been placed in jeopardy by the juvenile court, not by whether the Double Jeopardy Clause bars further action. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).

The plain language of subsection (2)(d) of this section carves out an exception for delinquency cases in which jeopardy has attached. In such cases, the county attorney is limited to taking exception pursuant to the procedures of sections 29-2317 to 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).

Under subsection (2)(d) of this section, when a county attorney files an appeal "in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy," the appeal must be taken by exception proceedings to the district court pursuant to sections 29-2317 to 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).

Had the Legislature intended that appeals under subsection (2)(d) of this section be made to the Court of Appeals, that subsection would have referred to sections 29-2315.01 to 29-2316, instead of to sections 29-2317 to 29-2319. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).

Once jeopardy has attached in a delinquency case, an appeal may only be taken under the procedures of sections 29-2317 to 29-2319. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).

The plain language of subsection (2)(d) of this section carves out an exception for delinquency cases in which jeopardy has attached. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).

2. Standing to appeal

Under this section, the adjudicated child's aunt lacked standing to appeal the juvenile court's order changing the child's placement and permanency plan. In re Interest of Joseph C., 299 Neb. 848, 910 N.W.2d 773 (2018).

This section controls who has the right to appeal from a juvenile court's placement order. It does not authorize an adjudicated child's sibling to appeal from an adverse placement order. In re Interest of Nettie F., 295 Neb. 117, 887 N.W.2d 45 (2016).

Neither foster parents nor grandparents, as such, have a statutory right to appeal from a juvenile court order. In re Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).

Unadjudicated siblings have no cognizable interest in the sibling relationship separate and distinct from a child adjudicated under section 43-247(3)(a). Thus, unadjudicated siblings lack standing to appeal from a final order or judgment of a juvenile court. In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).

A public defender appointed to represent a juvenile is not a party to the juvenile proceeding and may not bring an appeal based on error regarding an order unrelated to the disposition of the juvenile's case. In re Interest of William G., 256 Neb. 788, 592 N.W.2d 499 (1999).

Under subsection (2)(c) of this section, the term "custodian" extends beyond those having the care of a juvenile by means of an award under the Nebraska Juvenile Code. One empowered by parental authority to care for a child is a "custodian" and has standing to appeal a juvenile court's order. In re Interest of Artharena D., 253 Neb. 613, 571 N.W.2d 608 (1997).

3. Miscellaneous

Appellate courts in Nebraska have jurisdiction to hear appeals from final orders issued by juvenile courts in the same manner as appeals from the district courts. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

A party appealing from a juvenile court's final order must (1) file a notice of appeal with the juvenile court, (2) deposit the docket fee for an appeal with the clerk of the juvenile court, and (3) fulfill both requirements within 30 days of the court's order. These requirements are mandatory, and a party must satisfy them for an appellate court to acquire jurisdiction over an appeal. But under section 25-2301.01, a juvenile court can authorize a party to prosecute an appeal without paying fees and costs. The filing of a poverty affidavit, properly confirmed by oath or affirmation, serves as a substitute for the docket fee for an appeal. An in forma pauperis appeal is perfected when the appellant timely files a notice of appeal and an affidavit of poverty. In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).

In a juvenile's appeal from a delinquency proceeding, the poverty affidavit of the juvenile's parent may be filed in support of the juvenile's request to proceed in forma pauperis, and a parent is a party who may state a belief that the juvenile is entitled to relief. In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).

Separate juvenile courts are treated as county courts under sections 29-2317 to 29-2319 for the purpose of exception proceedings under subsection (2)(d) of this section. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).

Most cases arising under subsection (1) of this section are governed by section 25-1912, which sets forth the requirements for appealing district court decisions. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).

Under this section, an appeal taken in the same manner as an appeal from the district court includes the appeal bond requirement set forth in section 25-1914. In re Interest of Kayla F. et al., 13 Neb. App. 679, 698 N.W.2d 468 (2005).

43-2,106.02. Power of court to vacate or modify judgments or orders.

The separate juvenile court and the county court sitting as a juvenile court shall have the power to vacate or modify its own judgments or orders during or after the term at which such judgments or orders were made in the same manner as provided for actions filed in the district court.

Source:Laws 2006, LB 1115, § 33.

Annotations

Courts have the power to vacate or modify their own judgments and orders at any time during the term at which they were pronounced. But this power may not be used to circumvent the Legislature's power to fix the time limit to take an appeal. A court may not vacate an order or judgment and reinstate it at a later date just for the purpose of extending the time for appeal. One exception to this rule against using a court's power to vacate as a tool to extend the time for appeal is where a clerk fails to provide notice of a judgment to a party, thereby impairing the party's ability to appeal. In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017).

Juvenile courts have the power to vacate or modify their own judgments and orders during or after the term in which they were made in the same manner as provided for district courts under section 25-2001. In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017).

43-2,106.03. Rehabilitative services; hearing; court order; use.

Any time after the disposition of a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, upon the motion of any party or the court on its own motion, a hearing may be held regarding the amenability of the juvenile to the rehabilitative services that can be provided under the Nebraska Juvenile Code. The court may enter an order, based upon evidence presented at the hearing, finding that a juvenile is not amenable to rehabilitative services that can be provided under the Nebraska Juvenile Code. The reasons for such a finding shall be stated in the order. Such an order shall be considered by the county attorney in making a future determination under section 43-276 regarding such juvenile and by the court when considering a future transfer motion under section 29-1816 or 43-274 or any future charge or petition regarding such juvenile.

Source:Laws 2008, LB1014, § 41; Laws 2014, LB464, § 24.

43-2,107. Court; control conduct of a person; notice; hearing; temporary order; violation of order; penalty.

On application of a party or on the court's own motion, the court may restrain or otherwise control the conduct of a person if a petition has been filed under the Nebraska Juvenile Code and the court finds that such conduct is or may be detrimental or harmful to the juvenile. Notice of the application or motion and an opportunity to be heard thereon shall be given to the person against whom such application or motion is directed, except that the court may enter a temporary order restraining or otherwise controlling the conduct of a person for the protection of a juvenile without prior notice if it appears to the court that it is necessary to issue such order forthwith. Such temporary order shall be effective not to exceed ten days and shall not be binding against any person unless he or she has received a copy of such order. Any individual who violates an order restraining or otherwise controlling his or her conduct under this section shall be guilty of a Class II misdemeanor and may be proceeded against as described in sections 42-928 and 42-929.

Source:Laws 1981, LB 346, § 62; Laws 1985, LB 447, § 31; Laws 1992, LB 1184, § 16.

Annotations

Before an order is issued under this section, the juvenile court must accord the person affected due process. This section requires that the person to be restrained or whose conduct is to be controlled receives (1) notice that such an order is requested or contemplated and (2) an opportunity to be heard on the propriety of issuing such an order. The opportunity to be heard, described in this section, means a meaningful opportunity to be heard. In re Interest of G.G. et al., 237 Neb. 306, 465 N.W.2d 752 (1991).

43-2,108. Juvenile court; record; case file; how kept; certain reports and records not open to inspection without order of court; exceptions; information accessible through criminal justice information system.

(1) The juvenile court judge shall keep a record of all proceedings of the court in each case, including appearances, findings, orders, decrees, and judgments, and any evidence which he or she feels it is necessary and proper to record. The case file shall contain the complaint or petition and subsequent pleadings. The case file may be maintained as an electronic document through the court's electronic case management system, on microfilm, or in a paper volume and disposed of when determined by the State Records Administrator pursuant to the Records Management Act.

(2) Except as provided in subsections (3) and (4) of this section, the medical, psychological, psychiatric, and social welfare reports and the records of juvenile probation officers, as they relate to individual proceedings in the juvenile court, shall not be open to inspection, without order of the court. Such records shall be made available to a district court of this state or the District Court of the United States on the order of a judge thereof for the confidential use of such judge or his or her probation officer as to matters pending before such court but shall not be made available to parties or their counsel; and such district court records shall be made available to a county court or separate juvenile court upon request of the county judge or separate juvenile judge for the confidential use of such judge and his or her probation officer as to matters pending before such court, but shall not be made available by such judge to the parties or their counsel.

(3) As used in this section, confidential record information means all docket records, other than the pleadings, orders, decrees, and judgments; case files and records; reports and records of probation officers; and information supplied to the court of jurisdiction in such cases by any individual or any public or private institution, agency, facility, or clinic, which is compiled by, produced by, and in the possession of any court. In all cases under subdivision (3)(a) of section 43-247, access to all confidential record information in such cases shall be granted only as follows: (a) The court of jurisdiction may, subject to applicable federal and state regulations, disseminate such confidential record information to any individual, or public or private agency, institution, facility, or clinic which is providing services directly to the juvenile and such juvenile's parents or guardian and his or her immediate family who are the subject of such record information; (b) the court of jurisdiction may disseminate such confidential record information, with the consent of persons who are subjects of such information, or by order of such court after showing of good cause, to any law enforcement agency upon such agency's specific request for such agency's exclusive use in the investigation of any protective service case or investigation of allegations under subdivision (3)(a) of section 43-247, regarding the juvenile or such juvenile's immediate family, who are the subject of such investigation; and (c) the court of jurisdiction may disseminate such confidential record information to any court, which has jurisdiction of the juvenile who is the subject of such information upon such court's request.

(4) The court shall provide copies of predispositional reports and evaluations of the juvenile to the juvenile's attorney and the county attorney or city attorney prior to any hearing in which the report or evaluation will be relied upon.

(5) In all cases under sections 43-246.01 and 43-247, the office of Inspector General of Nebraska Child Welfare may submit a written request to the probation administrator for access to the records of juvenile probation officers in a specific case. Upon a juvenile court order, the records shall be provided to the Inspector General within five days for the exclusive use in an investigation pursuant to the Office of Inspector General of Nebraska Child Welfare Act. Nothing in this subsection shall prevent the notification of death or serious injury of a juvenile to the Inspector General of Nebraska Child Welfare pursuant to section 43-4318 as soon as reasonably possible after the Office of Probation Administration learns of such death or serious injury.

(6) In all cases under sections 43-246.01 and 43-247, the juvenile court shall disseminate confidential record information to the Foster Care Review Office pursuant to the Foster Care Review Act.

(7) Nothing in subsections (3), (5), and (6) of this section shall be construed to restrict the dissemination of confidential record information between any individual or public or private agency, institute, facility, or clinic, except any such confidential record information disseminated by the court of jurisdiction pursuant to this section shall be for the exclusive and private use of those to whom it was released and shall not be disseminated further without order of such court.

(8)(a) Any records concerning a juvenile court petition filed pursuant to subdivision (3)(c) of section 43-247 shall remain confidential except as may be provided otherwise by law. Such records shall be accessible to (i) the juvenile except as provided in subdivision (b) of this subsection, (ii) the juvenile's counsel, (iii) the juvenile's parent or guardian, and (iv) persons authorized by an order of a judge or court.

(b) Upon application by the county attorney or by the director of the facility where the juvenile is placed and upon a showing of good cause therefor, a judge of the juvenile court having jurisdiction over the juvenile or of the county where the facility is located may order that the records shall not be made available to the juvenile if, in the judgment of the court, the availability of such records to the juvenile will adversely affect the juvenile's mental state and the treatment thereof.

(9) Nothing in subsection (3), (5), or (6) of this section shall be construed to restrict the immediate dissemination of a current picture and information about a child who is missing from a foster care or out-of-home placement. Such dissemination by the Office of Probation Administration shall be authorized by an order of a judge or court. Such information shall be subject to state and federal confidentiality laws and shall not include that the child is in the care, custody, or control of the Department of Health and Human Services or under the supervision of the Office of Probation Administration.

(10) Any juvenile court order that places a juvenile on electronic monitoring shall also state whether the data from such electronic monitoring device shall be made available to a law enforcement agency immediately upon request by such agency. For any juvenile subject to the supervision of a probation officer, the name of the juvenile, the name of the juvenile's probation officer, and any terms of probation included in a juvenile court order otherwise open to inspection shall be provided to the Nebraska Commission on Law Enforcement and Criminal Justice which shall provide access to such information to law enforcement agencies through the state's criminal justice information system.

Source:Laws 1981, LB 346, § 65; Laws 1997, LB 622, § 73; Laws 2014, LB464, § 25; Laws 2015, LB347, § 2; Laws 2016, LB954, § 1; Laws 2017, LB225, § 4; Laws 2018, LB193, § 79; Laws 2023, LB50, § 23.

Cross References

Foster Care Review Act, see section 43-1318.

Office of Inspector General of Nebraska Child Welfare Act, see section 43-4301.

Records Management Act, see section 84-1220.

Annotations

Statutory provisions do not overcome constitutional rights. Since Star Chamber proceedings were abolished long ago, it may be that a statute which undertakes to secrete from a party information provided to the tribunal which uses that same information in adjudicating that party's parental rights offends due process. In re Interest of J.H., 242 Neb. 906, 497 N.W.2d 346 (1993).

There is no due process of law violation in the juvenile court's refusal to allow inspection of two caseworkers' case files in a termination of parental rights case when counsel had an opportunity to depose the caseworkers at length and good cause was not shown. In re Interest of S.W., 220 Neb. 734, 371 N.W.2d 726 (1985).

43-2,108.01. Sealing of records; juveniles eligible.

(1) Sections 43-2,108.01 to 43-2,108.05 apply only to persons who were under the age of eighteen years when the offense took place and, after being taken into custody, arrested, cited in lieu of arrest, or referred for prosecution without citation, the county attorney or city attorney:

(a) Declined to file a juvenile petition or criminal complaint;

(b) Offered juvenile pretrial diversion, mediation, or restorative justice to the juvenile under the Nebraska Juvenile Code;

(c) Filed a juvenile court petition describing the juvenile as a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247;

(d) Filed a criminal complaint in county court against the juvenile under state statute or city or village ordinance for misdemeanor or infraction possession of marijuana or misdemeanor or infraction possession of drug paraphernalia;

(e) Filed a criminal complaint in county court against the juvenile for any other misdemeanor or infraction under state statute or city or village ordinance, other than for a traffic offense when all offenses in the case are waivable offenses; or

(f) Filed a criminal complaint in county or district court for a felony offense under state law or a city or village ordinance that was subsequently transferred to juvenile court for ongoing jurisdiction.

(2) The changes made by Laws 2019, LB354, to the relief set forth in sections 43-2,108.03 to 43-2,108.05 shall apply to all persons described in this section, as amended by Laws 2019, LB354, and Laws 2020, LB1148, for offenses occurring prior to, on, or after September 1, 2019.

Source:Laws 2010, LB800, § 26; Laws 2011, LB463, § 6; Laws 2019, LB354, § 2; Laws 2019, LB595, § 32; Laws 2020, LB1148, § 11.

43-2,108.02. Sealing of records; notice to juvenile; contents.

(1) By January 1, 2020, the Supreme Court shall promulgate a written notice that:

(a) States in developmentally appropriate language that, for a juvenile described in section 43-2,108.01, the juvenile's record will be automatically sealed if (i) no charges are filed as a result of the determination of the prosecuting attorney, (ii) the charges are dismissed, (iii) the juvenile has satisfactorily completed the diversion, mediation, restorative justice, probation, supervision, or other treatment or rehabilitation program provided under the Nebraska Juvenile Code, or (iv) the juvenile has satisfactorily completed the county court diversion program, probation ordered by the court, or sentence ordered by the court;

(b) States in developmentally appropriate language that, if the record is not sealed as provided in subdivision (1)(a) of this section, the juvenile or the juvenile's parent or guardian may file a motion to seal the record with the court when the juvenile reaches the age of majority or six months have passed since the case was closed, whichever occurs sooner; and

(2) For a juvenile described in section 43-2,108.01, the county attorney or city attorney shall attach a copy of the notice to any juvenile petition or criminal complaint.

Source:Laws 2010, LB800, § 27; Laws 2011, LB463, § 7; Laws 2019, LB354, § 3; Laws 2019, LB595, § 33.

43-2,108.03. Sealing of records; county attorney or city attorney; duties; motion to seal record authorized.

(1)(a) If a juvenile described in section 43-2,108.01 was taken into custody, arrested, cited in lieu of arrest, or referred for prosecution without citation but no juvenile petition or criminal complaint was filed against the juvenile with respect to the arrest or custody, the county attorney or city attorney shall notify the government agency responsible for the arrest, custody, citation in lieu of arrest, or referral for prosecution without citation that no criminal charge or juvenile court petition was filed. The county attorney or city attorney shall provide written notification to the juvenile that no juvenile petition or criminal complaint was filed and provide the juvenile with the notice described in section 43-2,108.02.

(b) If a juvenile described in subdivision (1)(a) of this section discovers that his or her record was not automatically sealed, such juvenile may notify the county attorney, who shall cause the record to be sealed by providing the notice required by subdivision (1)(a) of this section.

(2)(a) If the county attorney or city attorney offered and a juvenile described in section 43-2,108.01 has agreed to pretrial diversion, mediation, or restorative justice, the county attorney or city attorney shall notify the government agency responsible for the arrest or custody when the juvenile has satisfactorily completed the resulting diversion, mediation, or restorative justice. At the time the juvenile is offered diversion, mediation, or restorative justice, the county attorney or city attorney shall provide the notice described in section 43-2,108.02 to the juvenile. The county attorney or city attorney shall also provide written notification to the juvenile of his or her satisfactory or unsatisfactory completion of diversion, mediation, or restorative justice.

(b) If a juvenile who was satisfactorily discharged from diversion, mediation, or restorative justice discovers that his or her record was not automatically sealed, the juvenile may notify the county attorney, who shall cause the record to be sealed by providing the notice required by subdivision (2)(a) of this section.

(3)(a) If the juvenile was taken into custody, arrested, cited in lieu of arrest, or referred for prosecution without citation and charges were filed but the case was dismissed by the court, the court shall seal the record as set forth in section 43-2,108.05.

(b) If a juvenile described in subdivision (3)(a) discovers that his or her record was not automatically sealed, the juvenile may notify the court, which shall seal the record as set forth in section 43-2,108.05.

(4)(a) If a juvenile described in section 43-2,108.01 has satisfactorily completed the probation, supervision, or other treatment or rehabilitation program provided under the Nebraska Juvenile Code or if the juvenile has satisfactorily completed the probation or sentence ordered by a county court, the court shall seal the records as set forth in section 43-2,108.05.

(b) If a juvenile described in subdivision (4)(a) discovers that his or her record was not automatically sealed, the juvenile may notify the court, which shall seal the record as set forth in section 43-2,108.05.

(5) A government agency or court that receives notice under subdivision (1)(a) or (2)(a) of this section shall, upon such receipt, immediately seal all records housed at that government agency or court pertaining to the citation, arrest, record of custody, complaint, disposition, diversion, mediation, or restorative justice.

(6) When a juvenile described in section 43-2,108.01 whose records have not been automatically sealed as provided in subsection (1), (2), (3), or (4) of this section reaches the age of majority or six months have passed since the case was closed, whichever occurs sooner, such juvenile or his or her parent or guardian may file a motion in the court of record asking the court to seal the record pertaining to the offense which resulted in disposition, adjudication, or diversion in juvenile court or diversion or sentence of the county court. The motion shall set forth the facts supporting the argument that the individual who is the subject of the juvenile petition or criminal complaint has been satisfactorily rehabilitated.

Source:Laws 2010, LB800, § 28; Laws 2011, LB463, § 8; Laws 2019, LB354, § 4; Laws 2019, LB595, § 34.

Annotations

An order sealing a juvenile record must demonstrate that the county attorney was given the required notice of the proceeding to seal the record. In re Interest of Candice H., 284 Neb. 935, 824 N.W.2d 34 (2012).

An order sealing a juvenile record must include a finding that the juvenile had satisfactorily completed probation. In re Interest of Candice H., 284 Neb. 935, 824 N.W.2d 34 (2012).

The requirements of this section must be met before a juvenile court can order that a record be sealed. In re Interest of Candice H., 284 Neb. 935, 824 N.W.2d 34 (2012).

43-2,108.04. Sealing of records; notification of proceedings; order of court; hearing; notice; findings; considerations.

(1) When a proceeding to seal the record is initiated, the court shall promptly notify the county attorney or city attorney involved in the case that is the subject of the proceeding to seal the record of the proceedings, and shall promptly notify the Department of Health and Human Services of the proceedings if the juvenile whose record is the subject of the proceeding is a ward of the state at the time the proceeding is initiated or if the department was a party in the proceeding.

(2) A party notified under subsection (1) of this section may file a response with the court within thirty days after receiving such notice. Any such response shall be served on all parties to the case. If the response objects to the sealing of a record, such response shall specify which factor or factors under subsection (5) of this section form the basis for the objection and shall set forth the facts supporting any argument that the juvenile has not been satisfactorily rehabilitated.

(3) If a party notified under subsection (1) of this section does not file a response with the court or files a response that indicates there is no objection to the sealing of the record, the court shall order that the record of the juvenile under consideration be sealed.

(4) If a party receiving notice under subsection (1) of this section files a response with the court objecting to the sealing of the record, the court shall conduct a hearing on the motion within sixty days after the court receives the response. The court shall give notice, by regular mail, of the date, time, and location of the hearing to the parties receiving notice under subsection (1) of this section and to the juvenile who is the subject of the record under consideration.

(5) After conducting a hearing in accordance with this section, the court shall order the record of the juvenile that is the subject of the motion be sealed if it finds by a preponderance of the evidence that the juvenile has been rehabilitated to a satisfactory degree. In determining whether the juvenile has been rehabilitated to a satisfactory degree, the court may consider all of the following:

(a) The behavior of the juvenile after the disposition, adjudication, diversion, or sentence and the juvenile's response to diversion, mediation, restorative justice, probation, supervision, other treatment or rehabilitation program, or sentence;

(b) The education and employment history of the juvenile; and

(6) If, after conducting the hearing in accordance with this section, the juvenile is not found to be satisfactorily rehabilitated such that the record is not ordered to be sealed, a juvenile who is a person described in section 43-2,108.01 or such juvenile's parent or guardian may not move the court to seal the record for one year after the court's decision not to seal the record is made, unless such time restriction is waived by the court.

Source:Laws 2010, LB800, § 29; Laws 2011, LB463, § 9; Laws 2019, LB354, § 5; Laws 2019, LB595, § 35.

43-2,108.05. Sealing of record; court; duties; effect; inspection of records; prohibited acts; violation; contempt of court.

(1) If the court orders the record of a juvenile sealed, the court shall:

(a) Order that all records, including any information or other data concerning any proceedings relating to the offense, including the arrest, taking into custody, petition, complaint, indictment, information, trial, hearing, adjudication, correctional supervision, dismissal, or other disposition or sentence, be deemed never to have occurred;

(b) Send notice of the order to seal the record (i) if the record includes impoundment or prohibition to obtain a license or permit pursuant to section 43-287, to the Department of Motor Vehicles, (ii) if the juvenile whose record has been ordered sealed was a ward of the state at the time the proceeding was initiated or if the Department of Health and Human Services was a party in the proceeding, to such department, and (iii) to law enforcement agencies, county attorneys, and city attorneys referenced in the court record;

(d) If the case was transferred from district court to juvenile court or was transferred under section 43-282, send notice of the order to seal the record to the transferring court; and

(e) Explain to the juvenile using developmentally appropriate language what sealing the record means. The explanation shall be given verbally if the juvenile is present in the court at the time the court issues the sealing order and by written notice sent by regular mail to the juvenile's last-known address if the juvenile is not present in the court at the time the court issues the sealing order. The sealing order shall include contact information for each government agency subject to the sealing order.

(2) The effect of having a record sealed is that thereafter no person is allowed to release any information concerning such record, except as provided by this section. After a record is sealed, the person whose record was sealed can respond to any public inquiry as if the offense resulting in such record never occurred. A government agency and any other public office or agency shall reply to any public inquiry that no information exists regarding a sealed record. Except as provided in subsection (3) of this section, an order to seal the record applies to every government agency and any other public office or agency that has a record relating to the offense, regardless of whether it receives notice of the hearing on the sealing of the record or a copy of the order. Upon the written request of a person whose record has been sealed and the presentation of a copy of such order, a government agency or any other public office or agency shall seal all records pertaining to the offense.

(3) A sealed record is accessible to the individual who is the subject of the sealed record and any persons authorized by such individual, law enforcement officers, county attorneys, and city attorneys in the investigation, prosecution, and sentencing of crimes, to the sentencing judge in the sentencing of criminal defendants, to a judge making a determination whether to transfer a case to or from juvenile court, to any attorney representing the subject of the sealed record, and to the Inspector General of Nebraska Child Welfare pursuant to an investigation conducted under the Office of Inspector General of Nebraska Child Welfare Act. Inspection of records that have been ordered sealed under section 43-2,108.04 may be made by the following persons or for the following purposes:

(a) By the court or by any person allowed to inspect such records by an order of the court for good cause shown;

(b) By the court, city attorney, or county attorney for purposes of collection of any remaining parental support or obligation balances under section 43-290;

(c) By the Nebraska Probation System for purposes of juvenile intake services, for presentence and other probation investigations, and for the direct supervision of persons placed on probation and by the Department of Correctional Services, the Office of Juvenile Services, a juvenile assessment center, a criminal detention facility, a juvenile detention facility, or a staff secure juvenile facility, for an individual committed to it, placed with it, or under its care;

(d) By the Department of Health and Human Services for purposes of juvenile intake services, the preparation of case plans and reports, the preparation of evaluations, compliance with federal reporting requirements, or the supervision and protection of persons placed with the department or for licensing or certification purposes under sections 71-1901 to 71-1906.01, the Child Care Licensing Act, or the Children's Residential Facilities and Placing Licensure Act;

(e) By the individual who is the subject of the sealed record and by persons authorized by such individual. The individual shall provide satisfactory verification of his or her identity;

(f) At the request of a party in a civil action that is based on a case that has a sealed record, as needed for the civil action. The party also may copy the sealed record as needed for the civil action. The sealed record shall be used solely in the civil action and is otherwise confidential and subject to this section;

(g) By persons engaged in bona fide research, with the permission of the court or the State Court Administrator, only if the research results in no disclosure of the person's identity and protects the confidentiality of the sealed record; or

(h) By a law enforcement agency if the individual whose record has been sealed applies for employment with the law enforcement agency.

(4) Nothing in this section prohibits the Department of Health and Human Services from releasing information from sealed records in the performance of its duties with respect to the supervision and protection of persons served by the department.

(5) In any application for employment, bonding, license, education, or other right or privilege, any appearance as a witness, or any other public inquiry, a person cannot be questioned with respect to any offense for which the record is sealed. If an inquiry is made in violation of this subsection, the person may respond as if the offense never occurred. Applications for employment shall contain specific language that states that the applicant is not obligated to disclose a sealed record. Employers shall not ask if an applicant has had a record sealed. The Department of Labor shall develop a link on the department's website to inform employers that employers cannot ask if an applicant had a record sealed and that an application for employment shall contain specific language that states that the applicant is not obligated to disclose a sealed record.

(6) Any person who knowingly violates this section shall be guilty of a Class V misdemeanor.

Source:Laws 2010, LB800, § 30; Laws 2011, LB463, § 10; Laws 2013, LB265, § 31; Laws 2013, LB561, § 24; Laws 2015, LB265, § 6; Laws 2016, LB954, § 2; Laws 2019, LB354, § 6.

Cross References

Child Care Licensing Act, see section 71-1908.

Children's Residential Facilities and Placing Licensure Act, see section 71-1924.

Office of Inspector General of Nebraska Child Welfare Act, see section 43-4301.

43-2,109. County board of visitors; appointment; duties; reports; expenses.

In each county the judge presiding over the juvenile court may appoint a board of four reputable residents, who shall serve without compensation, to constitute a board of visitation whose duty it shall be to visit at least once a year all institutions, societies, and associations within the county receiving juveniles under the Nebraska Juvenile Code. Visits shall be made by not less than two of the members of the board, who shall go together or make a joint report. The board of visitors shall report to the court, from time to time, the condition of juveniles received by or in the charge of such associations and institutions and shall make an annual report to the Department of Health and Human Services in such form as the department may prescribe. The county board may, in its discretion, make appropriations for the payment of the actual and necessary expenses incurred by the visitors in the discharge of their official duties.

Source:Laws 1981, LB 346, § 66; Laws 1985, LB 447, § 32; Laws 1994, LB 988, § 24; Laws 1996, LB 1044, § 150.

43-2,110. Detention homes; power of county boards to provide.

The several county boards of counties of Nebraska shall have the power and authority to appropriate the funds necessary to establish and maintain detention homes in connection with the juvenile courts of this state.

Source:Laws 1981, LB 346, § 67.

43-2,111. Establishment; when; court of record.

Each county of this state having a population of seventy-five thousand or more inhabitants shall constitute a separate juvenile court judicial district. There shall be established in each such juvenile court judicial district of this state a separate juvenile court whenever the establishment thereof shall be authorized by a majority of the electors of any such county voting thereon. The court so established shall be a court of record.

Source:Laws 1959, c. 189, § 1, p. 683; Laws 1976, LB 669, § 1; R.S.1943, (1978), § 43-228; Laws 1981, LB 346, § 68; Laws 1984, LB 973, § 1.

Annotations

If the State wishes to rely on evidence from dispositional proceedings to support a termination based on failed efforts at rehabilitation, it must see that a verbatim record is made so that the testimony and other foundation evidence is preserved; otherwise, there can be no meaningful review by the Supreme Court. In re Interest of R.A., 226 Neb. 160, 410 N.W.2d 110 (1987).

Probation officers are provided to carry out the work of the separate juvenile court. Beck v. Beck, 175 Neb. 108, 120 N.W.2d 585 (1963).

Constitutionality of Separate Juvenile Court Act could only be raised in proceeding brought directly for that purpose. State ex rel. Weiner v. Hans, 174 Neb. 612, 119 N.W.2d 72 (1963).

43-2,112. Establishment; petition; election; clerk of county court; duties.

The question of whether or not there shall be established a separate juvenile court in any county having a population of seventy-five thousand or more inhabitants shall be submitted to the registered voters of any such county at the first statewide general election or at any special election held not less than four months after the filing with the Secretary of State of a petition requesting the establishment of such court signed by registered voters of such county in a number not less than five percent of the total votes cast for Governor in such county at the general state election next preceding the filing of the petition. The question shall be submitted to the registered voters of the county in the following form:

Shall there be established in .......... County a separate juvenile court?

...... Yes

...... No

The election shall be conducted and the ballots shall be counted and canvassed in the manner prescribed by the Election Act.

After a separate juvenile court has been established, the clerk of the county court shall forthwith transfer to the trial docket of the separate juvenile court all pending matters within the exclusive jurisdiction of the separate juvenile court for consideration and disposition by the judge thereof.

Source:Laws 1959, c. 189, § 2, p. 683; Laws 1976, LB 669, § 2; Laws 1977, LB 118, § 1; Laws 1979, LB 373, § 2; R.S.Supp.,1980, § 43-229; Laws 1981, LB 346, § 69; Laws 1984, LB 973, § 2; Laws 1994, LB 76, § 553; Laws 2018, LB193, § 80.

Cross References

Election Act, see section 32-101.

43-2,113. Rooms and offices; jurisdiction; powers and duties.

(1) In counties where a separate juvenile court is established, the county board of the county shall provide suitable rooms and offices for the accommodation of the judge of the separate juvenile court and the officers and employees appointed by such judge or by the probation administrator pursuant to subsection (4) of section 29-2253. Such separate juvenile court and the judge, officers, and employees of such court shall have the same and exclusive jurisdiction, powers, and duties that are prescribed in the Nebraska Juvenile Code, concurrent jurisdiction under section 83-223, and such other jurisdiction, powers, and duties as specifically provided by law.

(2) A juvenile court created in a separate juvenile court judicial district or a county court sitting as a juvenile court in all other counties shall have and exercise jurisdiction within such juvenile court judicial district or county court judicial district with the county court and district court in all matters arising under Chapter 42, article 3, when the care, support, custody, or control of minor children under the age of eighteen years is involved. Such cases shall be filed in the county court and district court and may, with the consent of the juvenile judge, be transferred to the trial docket of the separate juvenile court or county court.

(3) All orders issued by a separate juvenile court or a county court which provide for child support or spousal support as defined in section 42-347 shall be governed by sections 42-347 to 42-381 and 43-290 relating to such support. Certified copies of such orders shall be filed by the clerk of the separate juvenile or county court with the clerk of the district court who shall maintain a record as provided in subsection (4) of section 42-364. There shall be no fee charged for the filing of such certified copies.

Source:Laws 1959, c. 189, § 3, p. 684; Laws 1961, c. 205, § 2, p. 618; Laws 1963, c. 527, § 1, p. 1653; R.S.1943, (1978), § 43-230; Laws 1981, LB 499, § 41; Laws 1981, LB 346, § 70; Laws 1984, LB 13, § 78; Laws 1984, LB 973, § 3; Laws 1985, LB 447, § 33; Laws 1985, Second Spec. Sess., LB 7, § 64; Laws 1986, LB 529, § 49; Laws 1986, LB 600, § 11; Laws 1991, LB 830, § 30; Laws 1993, LB 435, § 2; Laws 1994, LB 490, § 2; Laws 1996, LB 1296, § 21; Laws 1997, LB 229, § 35; Laws 2007, LB554, § 40; Laws 2018, LB193, § 81.

Annotations

The concurrent, original jurisdiction conferred on a county court under section 24-517(7) is more expansive than the jurisdiction conferred by section 25-2740(3) on a county court sitting as a juvenile court or a separate juvenile court. The jurisdiction conferred by section 25-2740(3) is neither exclusive nor original, because the conditions of this section must first be satisfied. Those conditions require a district court to transfer the case to juvenile court and the juvenile court to consent to the transfer. Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

Under subsection (2) of this section, if a juvenile court judge consents to a transfer of a custody case and the district court transfers the case to juvenile court, the case is “filed” with the county court, sitting as a juvenile court, or the separate juvenile court when a certified copy of the district court’s transfer order is filed in the juvenile court. Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).

Separate juvenile court has exclusive jurisdiction over neglected, dependent, and delinquent children. Miller v. Department of Public Welfare, 182 Neb. 155, 153 N.W.2d 737 (1967).

43-2,114. Judge; nomination; appointment; retention; vacancy.

All judges of separate juvenile courts shall be nominated, appointed, and retained in office in accordance with the provisions of Article V, section 21, of the Constitution of Nebraska. Each of such judges shall hold office until his or her successor is selected and qualified. Any vacancy in the office of judge of the separate juvenile courts shall be filled by nomination and appointment as provided by Article V, section 21, of the Constitution of Nebraska.

Source:Laws 1963, c. 244, § 1, p. 737; R.S.1943, (1978), § 43-230.01; Laws 1981, LB 346, § 71.

Cross References

Judges, retirement, discipline, and general powers, see Chapter 24, article 7.

43-2,115. Judge; retention in office; how determined.

After May 6, 1963, the right of any judge of any separate juvenile court to continue in office for another term shall be determined by the electorate in the manner provided by Article V, section 21, of the Constitution of Nebraska and the laws of this state.

Source:Laws 1963, c. 244, § 3, p. 738; R.S.1943, (1978), § 43-230.03; Laws 1981, LB 346, § 72.

Cross References

For provisions for retention in office, see sections 24-813 to 24-818.

43-2,116. Judge; term of office.

The term of office of judges of any separate juvenile court, who are approved by the electorate, shall be for six years beginning on the first Thursday after the first Tuesday in January following his or her approval by the electorate. Any judge of any separate juvenile court appointed to office after the expiration of the term of incumbent judges shall serve for three full years after his or her appointment and thereafter, if he or she desires to continue in office, shall cause his or her right to continue in office to be submitted to the electorate in the manner provided by law at the first general election held after he or she has served three full years as such judge, and the term of office for which he or she was appointed shall expire on the first Thursday after the first Tuesday of January following the general election at which his or her right to continue in office was subject to approval of the electorate.

Source:Laws 1963, c. 244, § 4, p. 738; R.S.1943, (1978), § 43-230.04; Laws 1981, LB 346, § 73.

43-2,117. Judicial nominating commission; selection; provisions applicable.

Judicial nominating commissions for the office of judge of the separate juvenile court shall be selected in the manner and subject to all of the terms and provisions of law relating to judicial nominating commissions generally, as provided by the Constitution of Nebraska and the laws of this state.

Source:Laws 1963, c. 244, § 5, p. 738; R.S.1943, (1978), § 43-230.05; Laws 1981, LB 346, § 74.

Cross References

For provisions of nominating commission, see sections 24-801 to 24-812.01.

43-2,118. Judge; qualifications.

No person shall be eligible to the office of judge of a separate juvenile court unless he or she (1) is thirty years of age, (2) is a citizen of the United States, (3) has been engaged in the practice of law in the State of Nebraska for at least five years, which may include prior service as a judge, (4) is currently admitted to practice before the Nebraska Supreme Court, and (5) is, on the effective date of appointment, a resident of the district to be served, and remains a resident of such district during the period of service.

Source:Laws 1959, c. 189, § 6, p. 685; Laws 1979, LB 237, § 4; R.S.Supp.,1980, § 43-233; Laws 1981, LB 346, § 75.

43-2,119. Judges; number; presiding judge.

(1) The number of judges of the separate juvenile court in counties which have established a separate juvenile court shall be:

(a) Two judges in counties having seventy-five thousand inhabitants but less than three hundred thousand inhabitants;

(b) Four judges in counties having at least three hundred thousand inhabitants but less than five hundred thousand inhabitants; and

(2) The senior judge in point of service as a juvenile court judge shall be the presiding judge. The judges shall rotate the office of presiding judge every three years unless the judges agree to another system.

Source:Laws 1972, LB 1362, § 1; Laws 1973, LB 446, § 1; Laws 1976, LB 669, § 3; R.S.1943, (1978), § 43-233.01; Laws 1981, LB 346, § 76; Laws 1995, LB 19, § 2; Laws 1998, LB 404, § 3; Laws 2001, LB 23, § 3; Laws 2007, LB377, § 4; Laws 2017, LB10, § 1; Laws 2024, LB1085, § 1.
Effective Date: July 19, 2024

43-2,120. Judge; salary; source of payment.

The salary of a judge of a separate juvenile court shall be as provided in section 24-301.01 and shall be paid out of the General Fund of the state.

Source:Laws 1959, c. 189, § 7, p. 685; Laws 1965, c. 110, § 2, p. 434; Laws 1974, LB 228, § 2; Laws 1979, LB 373, § 3; R.S.Supp.,1980, § 43-234; Laws 1981, LB 346, § 77.

43-2,121. Judge; salary increase; when effective.

Sections 24-301.01 and 43-2,120 shall be so interpreted as to effectuate their general purpose to provide, in the public interest, adequate compensation for judges of the separate juvenile courts as soon as such change may become operative under the Constitution of Nebraska.

Source:Laws 1965, c. 110, § 3, p. 434; R.S.1943, (1978), § 43-234.01; Laws 1981, LB 346, § 78.

43-2,122. Clerk; no additional compensation; custodian of seal.

The clerk of the district court in a county having a separate juvenile court shall serve ex officio as clerk of the separate juvenile court. Such clerk shall not receive any additional compensation for performing the duties of such office. He or she shall keep the seal of the court.

Source:Laws 1959, c. 189, § 8, p. 685; R.S.1943, (1978), § 43-235; Laws 1981, LB 346, § 79.

43-2,123. Judge; personal staff; appointment; salary.

Each judge of a separate juvenile court shall appoint his or her own court reporter, bailiff, and other necessary personal staff. Each court reporter shall be well-skilled in the art of stenography and capable of reporting verbatim the oral proceedings had in court. The salaries of the bailiff and other necessary personal staff of the separate juvenile court shall be fixed by the presiding judge, subject to the approval of the board of county commissioners or supervisors, and shall be paid out of the general fund of the county.

Source:Laws 1959, c. 189, § 9, p. 685; Laws 1973, LB 446, § 2; R.S.1943, (1978), § 43-236; Laws 1981, LB 346, § 80; Laws 1984, LB 13, § 79.

Annotations

Where the parents of a minor child are unfit to have its custody, custody may be properly placed in chief juvenile probation officer. Houghton v. Houghton, 179 Neb. 275, 137 N.W.2d 861 (1965); Hall v. Hall, 178 Neb. 91, 132 N.W.2d 217 (1964).

Separate juvenile court may place child in custody of probation officer where both parents are unfit to have custody. Beck v. Beck, 175 Neb. 108, 120 N.W.2d 585 (1963).

43-2,123.01. Probation officers; appointment prohibited.

Separate juvenile courts shall be prohibited from appointing juvenile probation officers after December 31, 1984.

Source:Laws 1984, LB 13, § 67.

Cross References

Definitions applicable, see section 29-2246.

43-2,124. Repealed. Laws 1984, LB 13, § 90.

43-2,125. Designation of alternative judge; when authorized.

Whenever any judge of a separate juvenile court is disabled or disqualified to act in any cause before him or her or is temporarily absent from the county or whenever it would be beneficial to the administration of justice, a judge of the district court may agree to serve as judge of the separate juvenile court during such period or the Chief Justice of the Supreme Court may designate and appoint a judge of the district court, a judge of another separate juvenile court, or a judge of the county court to serve as judge of the separate juvenile court during such period. The Chief Justice may also appoint a judge of a separate juvenile court to hear juvenile matters in a county court.

Source:Laws 1959, c. 189, § 10, p. 686; R.S.1943, (1978), § 43-237; Laws 1981, LB 346, § 82; Laws 1982, LB 787, § 21; Laws 1986, LB 516, § 15; Laws 1993, LB 154, § 1; Laws 2001, LB 23, § 4.

43-2,126. Transferred to section 43-2,106.01.

43-2,127. Abolition; petition; election; transfer of dockets.

After a separate juvenile court has been established, the question of whether it should be abolished shall be submitted to the registered voters of any county having adopted same at the first general state election held not less than four months after the filing with the Secretary of State of a petition requesting the abolishment of such court signed by registered voters of such county in a number not less than five percent of the total vote cast for Governor in such county at the statewide general election next preceding the filing of the petition. The question shall be submitted to the registered voters of the county in the following form:

Shall the separate juvenile court in ............... County be abolished?

......... Yes

......... No

The election shall be conducted and the ballots shall be counted and canvassed in the manner prescribed by the Election Act.

If the proposition to abolish a separate juvenile court is carried by a majority of the registered voters voting on the proposition, the jurisdiction, powers, and duties of the separate juvenile court shall cease, and the powers and duties of the county court over juvenile matters shall be reestablished, at the end of the term of the incumbent juvenile judge. After a separate juvenile court has been abolished, the clerk of the county court shall forthwith transfer to the docket of the county court all pending matters theretofore within the exclusive jurisdiction of the separate juvenile court for consideration and disposition by the county court.

Source:Laws 1959, c. 189, § 12, p. 686; Laws 1979, LB 373, § 4; R.S.Supp.,1980, § 43-239; Laws 1981, LB 346, § 84; Laws 1994, LB 76, § 554.

Cross References

Election Act, see section 32-101.

43-2,128. Code, how construed.

The Nebraska Juvenile Code shall be liberally construed to the end that its purpose may be carried out as provided in section 43-246.

Source:Laws 1981, LB 346, § 64; Laws 1985, LB 447, § 34.

43-2,129. Code, how cited.

Sections 43-245 to 43-2,129 shall be known and may be cited as the Nebraska Juvenile Code.

Source:Laws 1981, LB 346, § 85; Laws 1985, LB 447, § 35; Laws 1989, LB 182, § 19; Laws 1994, LB 1106, § 8; Laws 1997, LB 622, § 74; Laws 1998, LB 1041, § 31; Laws 1998, LB 1073, § 27; Laws 2000, LB 1167, § 23; Laws 2003, LB 43, § 16; Laws 2006, LB 1115, § 32; Laws 2008, LB1014, § 42; Laws 2010, LB800, § 31; Laws 2011, LB463, § 11; Laws 2013, LB561, § 25; Laws 2014, LB464, § 26; Laws 2015, LB482, § 6; Laws 2017, LB180, § 2; Laws 2018, LB990, § 7.

43-2,130. Repealed. Laws 2000, LB 894, § 1.

43-301. Patrolling; activities authorized.

It shall be lawful for Boy Scout council, board of directors, scout executive, or others having the management or control of Boy Scouts, and those having charge of juniors in similar organizations not organized for pecuniary gain or profit, to permit boys in such organizations to render service patrolling streets or grounds; and to aid in the maintenance of order at public gatherings, such as state, city, fair association, school, or any other gatherings at which it may be deemed expedient to have the service of such boys.

Source:Laws 1923, c. 127, § 1, p. 314; C.S.1929, § 43-301; R.S.1943, § 43-301.

43-302. Officials; liability; exemption.

Boards, council executives, or others having charge of juveniles mentioned in section 43-301 shall not be liable in damages to said juveniles so employed, or to the parent or guardian, or to any other standing in loco parentis.

Source:Laws 1923, c. 127, § 2, p. 314; C.S.1929, § 43-302; R.S.1943, § 43-302.

43-401. Act, how cited.

Sections 43-401 to 43-431 shall be known and may be cited as the Health and Human Services, Office of Juvenile Services Act.

Source:Laws 1998, LB 1073, § 33; Laws 2012, LB972, § 4; Laws 2020, LB1140, § 4; Laws 2020, LB1188, § 1.

43-402. Legislative intent; juvenile justice system; goal.

It is the intent of the Legislature that the juvenile justice system provide individualized accountability and individualized treatment for juveniles in a manner consistent with public safety to those juveniles who violate the law. The juvenile justice system shall also promote prevention efforts which are community-based and involve all sectors of the community. Prevention efforts shall be provided through the support of programs and services designed to meet the needs of those juveniles who are identified as being at risk of violating the law and those whose behavior is such that they endanger themselves or others. The goal of the juvenile justice system shall be to provide a range of programs and services which:

(1) Retain and support juveniles within their homes whenever possible and appropriate;

(2) Provide the least restrictive and most appropriate setting for juveniles while adequately protecting them and the community;

(3) Are community-based and are provided in as close proximity to the juvenile's community as possible and appropriate;

(4) Provide humane, secure, and therapeutic confinement to those juveniles who present a danger to the community;

(5) Provide followup and aftercare services to juveniles when returned to their families or communities to ensure that progress made and behaviors learned are integrated and continued;

(6) Hold juveniles accountable for their unlawful behavior in a manner consistent with their long-term needs, stressing the offender's responsibility to victims and the community;

(7) Base treatment planning and service provision upon an individual evaluation of the juvenile's needs recognizing the importance of meeting the educational needs of the juvenile in the juvenile justice system;

(8) Are family focused and include the juvenile's family in assessment, case planning, treatment, and service provision as appropriate and emphasize parental involvement and accountability in the rehabilitation of their children;

(9) Provide supervision and service coordination, as appropriate, to implement and monitor treatment plans and to prevent reoffending;

(10) Provide integrated service delivery through appropriate linkages to other human service agencies; and

(11) Promote the development and implementation of community-based programs designed to prevent unlawful behavior and to effectively minimize the depth and duration of the juvenile's involvement in the juvenile justice system.

Source:Laws 1994, LB 988, § 9; R.S.1943, (1994), § 83-925.01; Laws 1998, LB 1073, § 34; Laws 1999, LB 594, § 20.

43-403. Terms, defined.

For purposes of the Health and Human Services, Office of Juvenile Services Act:

(1) Aftercare means the control, supervision, and care exercised over juveniles who have been discharged from commitment;

(2) Committed means an order by a court committing a juvenile to the care and custody of the Office of Juvenile Services for treatment at a youth rehabilitation and treatment center identified in the court order;

(3) Community supervision means the control, supervision, and care exercised over juveniles when a commitment to the level of treatment of a youth rehabilitation and treatment center has not been ordered by the court;

(4) Emergency, for purposes of sections 43-427 to 43-430, means a public health emergency or a situation, including fire, flood, tornado, natural disaster, or damage to a youth rehabilitation and treatment center, that renders the youth rehabilitation and treatment center uninhabitable. Emergency does not include inadequate staffing;

(5) Evaluation means assessment of the juvenile's social, physical, psychological, and educational development and needs, including a recommendation as to an appropriate treatment plan; and

(6) Treatment means the type of supervision, care, and rehabilitative services provided for the juvenile at a youth rehabilitation and treatment center operated by the Office of Juvenile Services.

Source:Laws 1998, LB 1073, § 35; Laws 2020, LB1140, § 5; Laws 2020, LB1188, § 2; Laws 2021, LB273, § 2.

43-404. Office of Juvenile Services; created; powers and duties.

There is created within the Department of Health and Human Services the Office of Juvenile Services. The office shall have oversight and control of the youth rehabilitation and treatment centers. The Administrator of the Office of Juvenile Services shall be appointed by the chief executive officer of the department or his or her designee and shall be responsible for the administration of the facilities and programs of the office. The department may subcontract with a state agency or private provider to provide services related to the facilities and programs of the Office of Juvenile Services.

Source:Laws 1994, LB 988, § 10; Laws 1996, LB 1044, § 960; R.S.Supp.,1996, § 83-925.02; Laws 1998, LB 1073, § 36; Laws 2007, LB296, § 109; Laws 2013, LB561, § 26; Laws 2020, LB1188, § 3.

43-405. Office of Juvenile Services; administrative duties.

The administrative duties of the Office of Juvenile Services are to:

(1) Manage, establish policies for, and administer the office, including all facilities and programs operated by the office or provided through the office by contract with a provider;

(2) Supervise employees of the office, including employees of the facilities and programs operated by the office;

(3) Have separate budgeting procedures and develop and report budget information separately from the Department of Health and Human Services;

(4) Adopt and promulgate rules and regulations for the levels of treatment and for management, control, screening, treatment, rehabilitation, transfer, discharge, and evaluation of juveniles committed to the Office of Juvenile Services;

(5) Ensure that statistical information concerning juveniles committed to facilities of the office is collected, developed, and maintained for purposes of research and the development of treatment programs;

(6) Monitor commitments, placements, and evaluations at facilities and programs operated by the office or through contracts with providers and submit electronically an annual report of its findings to the Legislature. The report shall include an assessment of the administrative costs of operating the facilities, the cost of programming, and the savings realized through reductions in commitments, placements, and evaluations;

(7) Coordinate the programs and services of the juvenile justice system with other governmental agencies and political subdivisions;

(8) Coordinate educational, vocational, and social counseling for juveniles committed to the office; and

(9) Exercise all powers and perform all duties necessary to carry out its responsibilities under the Health and Human Services, Office of Juvenile Services Act.

Source:Laws 1998, LB 1073, § 37; Laws 2012, LB782, § 44; Laws 2012, LB972, § 5; Laws 2012, LB1160, § 12; Laws 2013, LB222, § 7; Laws 2013, LB561, § 27; Laws 2020, LB1188, § 4.

43-406. Office of Juvenile Services; individualized treatment plan; case classification and management; requirements.

The Office of Juvenile Services shall utilize:

(1) Evidence-based and validated risk and needs assessment instruments for use in determining the individualized treatment plan for each juvenile committed to the office;

(2) A case classification process to include levels of treatment defined by rules and regulations and case management standards for each level of treatment;

(3) Case management for all juveniles committed to the office; and

(4) A management information system. The system shall be a unified, interdepartmental client information system which supports the management function as well as the service function.

Source:Laws 1994, LB 988, § 15; Laws 1995, LB 371, § 27; Laws 1996, LB 1141, § 1; Laws 1997, LB 307, § 229; Laws 1997, LB 882, § 12; R.S.Supp.,1997, § 83-925.07; Laws 1998, LB 1073, § 38; Laws 2013, LB561, § 28; Laws 2020, LB1188, § 5.

43-407. Office of Juvenile Services; programs and treatment services; individualized treatment plan; placement; procedure; case management and coordination process; funding utilization; intent; evidence-based services, policies, practices, and procedures; report; contents; Executive Board of Legislative Council; powers.

(1) The Office of Juvenile Services shall design and make available programs and treatment services through youth rehabilitation and treatment centers. The programs and treatment services shall be evidence-based and based upon the individual or family evaluation process using evidence-based, validated risk and needs assessments to create an individualized treatment plan. The treatment plan shall be developed within fourteen days after admission and provided to the committing court and interested parties. The court may, on its own motion or upon the motion of an interested party, set a hearing to review the treatment plan.

(2) A juvenile may be committed by a court to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center operated and utilized in compliance with state law pursuant to a hearing described in subdivision (1)(b)(iii) of section 43-286. The office shall not change a juvenile's placement except as provided in this section. If a juvenile placed at a youth rehabilitation and treatment center is assessed as needing inpatient or subacute substance abuse or behavioral health residential treatment, the Office of Juvenile Services may arrange for such treatment to be provided at the Hastings Regional Center or may transition the juvenile to another inpatient or subacute residential treatment facility licensed as a treatment facility in the State of Nebraska and shall provide notice of the change in placement pursuant to subsection (3) of this section. Except in a case requiring emergency admission to an inpatient facility, the juvenile shall not be discharged by the Office of Juvenile Services until the juvenile has been returned to the court for a review of his or her conditions of probation and the juvenile has been transitioned to the clinically appropriate level of care. Programs and treatment services shall address:

(a) Behavioral impairments, severe emotional disturbances, sex offender behaviors, and other mental health or psychiatric disorders;

(b) Drug and alcohol addiction;

(d) Education, special education, and related services;

(e) Individual, group, and family counseling services as appropriate with any treatment plan related to subdivisions (a) through (d) of this subsection. Services shall also be made available for juveniles who have been physically or sexually abused;

(f) A case management and coordination process, designed to assure appropriate reintegration of the juvenile to his or her family, school, and community. This process shall follow individualized planning which shall begin at intake and evaluation. Structured programming shall be scheduled for all juveniles. This programming shall include a strong academic program as well as classes in health education, living skills, vocational training, behavior management and modification, money management, family and parent responsibilities, substance abuse awareness, physical education, job skills training, and job placement assistance. Participation shall be required of all juveniles if such programming is determined to be age and developmentally appropriate. The goal of such structured programming shall be to provide the academic and life skills necessary for a juvenile to successfully return to his or her home and community upon release; and

(g) The design and delivery of treatment programs through the youth rehabilitation and treatment centers as well as any licensing or certification requirements, and the office shall follow the requirements as stated within Title XIX and Title IV-E of the federal Social Security Act, as such act existed on January 1, 2020, the Special Education Act, or other funding guidelines as appropriate. It is the intent of the Legislature that these funding sources shall be utilized to support service needs of eligible juveniles.

(3) When the Office of Juvenile Services has arranged for treatment of a juvenile as provided in subsection (2) of this section, the office shall file a report and notice of placement change with the court and shall send copies of the notice to all interested parties, including any parent or guardian of the juvenile, at least seven days before the placement of the juvenile is changed from the order of the committing court. The court, on its own motion or upon the filing of an objection to the change by an interested party, may order a hearing to review such change in placement and may order the change be stayed until the completion of the hearing. When filing a report and notice of placement change pursuant to this subsection, or upon a court order to set a hearing to review a change in placement or stay a change in placement pursuant to this subsection, the office may file a motion for immediate change of placement pursuant to subsection (4) of section 43-408.

(4)(a) The Office of Juvenile Services shall provide evidence-based services and operate the youth rehabilitation and treatment centers in accordance with evidence-based policies, practices, and procedures. On December 15 of each year, the office shall electronically submit to the Governor, the Legislature, and the Chief Justice of the Supreme Court, a comprehensive report of the evidence-based services, policies, practices, and procedures by which such centers operate, and efforts the office has taken to ensure fidelity to evidence-based models. The report may be attached to preexisting reporting duties. The report shall include at a minimum:

(i) The percentage of juveniles being supervised in accordance with evidence-based practices;

(ii) The percentage of state funds expended by each respective department for programs that are evidence-based, and a list of all programs which are evidence-based;

(iii) Specification of supervision policies, procedures, programs, and practices that were created, modified, or eliminated; and

(iv) Recommendations of the office for any additional collaboration with other state, regional, or local public agencies, private entities, or faith-based and community organizations.

(b) Each report and executive summary shall be available to the general public on the website of the office.

(c) The Executive Board of the Legislative Council may request the Consortium for Crime and Justice Research and Juvenile Justice Institute at the University of Nebraska at Omaha to review, study, and make policy recommendations on the reports assigned by the executive board.

Source:Laws 1994, LB 988, § 14; Laws 1997, LB 882, § 11; R.S.Supp.,1997, § 83-925.06; Laws 1998, LB 1073, § 39; Laws 2007, LB542, § 4; Laws 2013, LB561, § 29; Laws 2014, LB464, § 27; Laws 2020, LB1148, § 12; Laws 2020, LB1188, § 6; Laws 2021, LB273, § 3.

Cross References

Special Education Act, see section 79-1110.

43-408. Office of Juvenile Services; committing court; powers and duties; commitment review; hearing; immediate change of placement; procedure; annual review of commitment and placement; review status; when.

(1) Whenever any juvenile is committed to the Office of Juvenile Services, the juvenile shall also be considered committed to the care and custody of the Department of Health and Human Services for the purpose of obtaining health care and treatment services.

(2) The committing court may order placement at a youth rehabilitation and treatment center for a juvenile committed to the Office of Juvenile Services following a commitment hearing pursuant to subdivision (1)(b)(iii) of section 43-286. The court shall continue to maintain jurisdiction over any juvenile committed to the Office of Juvenile Services, and the office shall provide the court and parties of record with the initial treatment plan and monthly updates regarding the progress of the juvenile.

(3) In addition to the hearings set forth in section 43-285, during a juvenile's term of commitment, any party may file a motion for commitment review to bring the case before the court for consideration of the juvenile's commitment to a youth rehabilitation and treatment center. A hearing shall be scheduled no later than thirty days after the filing of such motion. No later than five days prior to the hearing, the office shall provide information to the parties regarding the juvenile's individualized treatment plan and progress. A representative of the office or facility shall be physically present at the hearing to provide information to the court unless the court allows the representative to appear telephonically or by video. The juvenile and the juvenile's parent or guardian shall have the right to be physically present at the hearing. The court may enter such orders regarding the juvenile's care and treatment as are necessary and in the best interests of the juvenile, including an order for early discharge from commitment when appropriate. In entering an order for early discharge from commitment to intensive supervised probation in the community, the court shall consider to what extent:

(a) The juvenile has completed the goals of the juvenile's individualized treatment plan or received maximum benefit from institutional treatment;

(b) The juvenile would benefit from continued services under community supervision;

(d) There is reason to believe that the juvenile will not commit further violations of law and will comply with the terms of intensive supervised probation.

(4) When filing a motion pursuant to subsection (3) of this section, the office may also file a motion for immediate change of placement to another youth rehabilitation and treatment center operated and utilized in compliance with state law. When filing a report and notice of placement change pursuant to subsection (3) of section 43-407, or upon a court order to set a hearing to review a change in placement or stay a change in placement pursuant to subsection (3) of section 43-407, the office may file a motion for immediate change of placement to the inpatient or subacute residential treatment facility licensed as a treatment facility in the State of Nebraska. The motion shall set forth with reasonable particularity the grounds for an immediate change of placement. A motion for immediate change of placement under this subsection shall be heard within twenty-four hours, excluding nonjudicial days, and may be heard telephonically or by videoconferencing. Prior to filing a motion for immediate change of placement, the office shall make a reasonable attempt to provide notice of the motion to the juvenile's parent or guardian, including notice that the motion will be set for hearing within twenty-four hours. The court shall promptly provide the notice of hearing to all parties of record. In advance of the hearing, the office shall provide to the other parties of record any exhibits it intends to offer, if any, and the identity of its witnesses. The office shall provide the juvenile an opportunity before the hearing to consult with the juvenile's counsel and review the motion and the exhibits and witnesses. The court shall order the immediate change of placement pending an order pursuant to subsection (3) of this section or subsection (3) of section 43-407 if the court determines that an immediate change is in the best interests of the juvenile and further delay would be contrary to the juvenile's well-being, physical health, emotional health, or mental health.

(5) Each juvenile committed to the Office of Juvenile Services for placement at a youth rehabilitation and treatment center shall also be entitled to an annual review of such commitment and placement for as long as the juvenile remains so committed and placed. At an annual review hearing, the court shall consider the factors described in subsection (3) of this section to assess the juvenile's progress and determine whether commitment remains in the best interests of the juvenile.

(6) If a juvenile is placed in detention while awaiting placement at a youth rehabilitation and treatment center and the placement has not occurred within fourteen days, the committing court shall hold a hearing every fourteen days to review the status of the juvenile. Placement of a juvenile in detention shall not be considered a treatment service.

Source:Laws 1996, LB 1044, § 962; R.S.Supp.,1996, § 83-925.12; Laws 1998, LB 1073, § 40; Laws 2001, LB 598, § 1; Laws 2006, LB 1113, § 40; Laws 2013, LB561, § 30; Laws 2020, LB1148, § 13; Laws 2020, LB1188, § 7; Laws 2021, LB273, § 4.

Annotations

Under subsection (2) of this section and section 43-247, a juvenile court has jurisdiction over an adjudicated juvenile whom the court has placed at a youth rehabilitation and treatment center. But despite that jurisdiction, subsection (2) of this section prohibits a juvenile court from reviewing the progress of a juvenile whom the court has placed at a youth rehabilitation and treatment center. In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

When a court adjudicates a juvenile under section 43-247(2) and (3) and commits the juvenile to the Office of Juvenile Services with a placement at a youth rehabilitation and treatment center, it has determined that the subsection (2) adjudication will control the juvenile's disposition. The disposition determination controls which review hearing statute applies, and the requirement in section 43-278 for 6-month review hearings does not authorize the court to conduct review hearings. Instead, the prohibition in subsection (2) of this section of review hearings for juveniles placed at a youth rehabilitation and treatment center controls. In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).

Giving effect to the language of this section, while the Office of Juvenile Services may make an initial determination with regard to the advisability of the discharge of a juvenile committed to that office, the committing court, as a result of its statutorily imposed continuing jurisdiction, must approve the discharge of the juvenile. In re Interest of Tamantha S., 267 Neb. 78, 672 N.W.2d 24 (2003).

A juvenile court does not have the authority to enter an order prohibiting any change without prior court approval in the placement of a juvenile committed to the custody of the Office of Juvenile Services. In re Interest of Chelsey D., 14 Neb. App. 392, 707 N.W.2d 798 (2005).

43-409. Office of Juvenile Services; access to records; immunity.

The Office of Juvenile Services shall have access to and may obtain copies of all records pertaining to a juvenile committed to it or placed with it, including, but not limited to, school records, medical records, juvenile court records, probation records, test results, treatment records, evaluations, and examination reports. Any person who, in good faith, furnishes any records or information to the Office of Juvenile Services shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed. The owners, officers, directors, employees, or agents of such medical office, school, court, office, corporation, partnership, or other such entity shall not be liable for furnishing such records or information.

Source:Laws 1998, LB 1073, § 41.

43-410. Juvenile absconding; authority to apprehend.

(1) Any peace officer or direct care staff member of the Office of Juvenile Services has the authority to apprehend and detain a juvenile who has absconded or is attempting to abscond from commitment to the Office of Juvenile Services and shall cause the juvenile to be returned to the youth rehabilitation and treatment center or an appropriate juvenile detention facility or staff secure juvenile facility.

(2) For purposes of this section, direct care staff member means any staff member charged with the day-to-day care and supervision of juveniles at a youth rehabilitation and treatment center or security staff who has received training in apprehension techniques and procedures.

Source:Laws 1998, LB 1073, § 42; Laws 2013, LB561, § 31; Laws 2020, LB1188, § 8.

43-411. Detainers for apprehension and detention; authorized; detention; limitations.

The chief executive officer of the Department of Health and Human Services shall have the authority, and may delegate the authority only to the Administrator of the Office of Juvenile Services and the superintendents of the youth rehabilitation and treatment centers, to issue detainers for the apprehension and detention of juveniles who have absconded from a placement with or commitment to the office. Any peace officer who detains a juvenile on such a detainer shall hold the juvenile in an appropriate facility or program for juveniles until the office can take custody of the juvenile.

Source:Laws 1997, LB 882, § 8; R.S.Supp.,1997, § 83-925.13; Laws 1998, LB 1073, § 43; Laws 1999, LB 522, § 1; Laws 2007, LB296, § 110.

43-412. Commitment to Office of Juvenile Services; discharge of juvenile; effect of discharge; notice of discharge.

(1) Every juvenile committed to the Office of Juvenile Services pursuant to the Nebraska Juvenile Code shall remain committed until he or she attains the age of nineteen or is legally discharged.

(2) Upon attainment of the age of nineteen or absent a continuing order of intensive supervised probation, discharge of any juvenile pursuant to the rules and regulations shall be a complete release from all penalties incurred by conviction or adjudication of the offense for which he or she was committed.

(3) The Office of Juvenile Services shall provide the committing court, Office of Probation Administration, county attorney, defense attorney, if any, and guardian ad litem, if any, with written notification of the juvenile's discharge within thirty days prior to a juvenile being discharged from the care and custody of the office.

Source:Laws 1901, c. 51, § 11, p. 407; Laws 1903, c. 69, § 2, p. 369; R.S.1913, § 7379; C.S.1922, § 7038; C.S.1929, § 83-1109; R.S.1943, § 83-472; Laws 1969, c. 817, § 80, p. 3111; Laws 1974, LB 992, § 1; Laws 1993, LB 31, § 44; Laws 1994, LB 988, § 35; Laws 1996, LB 1044, § 956; R.S.Supp.,1996, § 83-472; Laws 1998, LB 1073, § 44; Laws 2011, LB463, § 12; Laws 2013, LB561, § 32; Laws 2015, LB605, § 75.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

Annotations

Under former law a commitment hereunder is not for a definite period. State v. Pinkerton, 186 Neb. 225, 182 N.W.2d 198 (1970).

Juvenile court, in committing boy to industrial school, cannot fix definite term of detention. Cohen v. Clark, 107 Neb. 849, 187 N.W. 120 (1922).

A juvenile court's commitment of a juvenile to a youth rehabilitation treatment center does not constitute a discharge within the meaning of section 43-247, and therefore, the juvenile court retains jurisdiction. A juvenile court does not have jurisdiction over the Office of Juvenile Services in placing, managing, or discharging a juvenile committed to a youth rehabilitation treatment center, even though the juvenile court retains jurisdiction of the juvenile. In re Interest of David C., 6 Neb. App. 198, 572 N.W.2d 392 (1997).

43-413. Repealed. Laws 2015, LB 605, § 112.

43-414. Repealed. Laws 2020, LB1188, § 21.

43-415. Repealed. Laws 2020, LB1188, § 21.

43-416. Repealed. Laws 2020, LB1188, § 21.

43-417. Discharge from youth rehabilitation and treatment center; considerations.

In determining whether to discharge a juvenile from a youth rehabilitation and treatment center, the Office of Juvenile Services shall consider whether (1) the juvenile has completed the goals of his or her individualized treatment plan or received maximum benefit from institutional treatment, (2) the juvenile would benefit from continued services under community supervision, (3) the juvenile can function in a community setting, (4) there is reason to believe that the juvenile will not commit further violations of law, and (5) there is reason to believe that the juvenile will comply with the conditions of probation.

Source:Laws 1998, LB 1073, § 49; Laws 2013, LB561, § 37; Laws 2020, LB1188, § 9.

43-418. Repealed. Laws 2020, LB1188, § 21.

43-419. Repealed. Laws 2020, LB1188, § 21.

43-420. Hearing officer; requirements.

Any hearing required or permitted for juveniles in the custody of the Office of Juvenile Services shall be conducted by a hearing officer who is an attorney licensed to practice law in the State of Nebraska and may be an employee of the Department of Health and Human Services or an attorney who is an independent contractor. If the hearing officer is an employee of the department, he or she shall not be assigned to any duties requiring him or her to give ongoing legal advice to any person employed by or who is a contractor with the office.

Source:Laws 1998, LB 1073, § 52; Laws 2013, LB561, § 40; Laws 2020, LB1188, § 10.

43-421. Repealed. Laws 2020, LB1188, § 21.

43-422. Repealed. Laws 2020, LB1188, § 21.

43-423. Repealed. Laws 2020, LB1188, § 21.

43-424. Assault, escape, or attempt to escape; documentation required; copy to court and county attorney.

If a juvenile assaults an employee of a youth rehabilitation and treatment center or another juvenile who has been committed to the youth rehabilitation and treatment center or escapes or attempts to escape from a youth rehabilitation and treatment center, the chief executive officer of the youth rehabilitation and treatment center shall document the assault, escape, or attempt to escape and send a copy of such documentation to the committing court and the county attorney of the county in which the committing court is located as soon as possible after the determination that such assault, escape, or attempt to escape has occurred. Such documentation may be offered as evidence presented at any hearing conducted pursuant to section 43-2,106.03.

Source:Laws 2012, LB972, § 6.

43-425. Community and Family Reentry Process; created; juvenile committed to youth rehabilitation and treatment center; family team meetings; individualized reentry plan; risk-screening and needs assessment; probation officer; duties; Office of Probation Administration; duties.

(1) The Community and Family Reentry Process is hereby created. This process is created in order to reduce recidivism and promote safe and effective reentry for the juvenile and his or her family to the community from the juvenile justice system.

(2) While a juvenile is committed to a youth rehabilitation and treatment center, family team meetings shall be conducted in person or via videoconferencing at least once per month with the juvenile's support system to discuss the juvenile's transition back to the community. A juvenile's support system should be made up of any of the following: The juvenile himself or herself, any immediate family members or guardians, informal and formal supports, the juvenile's guardian ad litem appointed by the court, the juvenile's probation officer, Office of Juvenile Services personnel employed by the facility, and any additional personnel as appropriate. Once developed, individualized reentry plans should be discussed at the family team meetings with the juvenile and other members of the juvenile's support system and shall include discussions on the juvenile's placement after leaving the facility. The probation officer and the Office of Juvenile Services personnel should discuss progress and needs of the juvenile and should help the juvenile follow his or her individual reentry plan to help with his or her transition back to the community.

(3) Within sixty days prior to discharge from a youth rehabilitation and treatment center, or as soon as possible if the juvenile's remaining time at the youth rehabilitation and treatment center is less than sixty days, an evidence-based risk screening and needs assessment should be conducted on the juvenile in order to determine the juvenile's risk of reoffending and the juvenile's individual needs upon reentering the community.

(4) Individualized reentry plans shall be developed with input from the juvenile and his or her support system in conjunction with a risk assessment process. Individualized reentry plans shall be finalized thirty days prior to the juvenile leaving the youth rehabilitation and treatment center or as soon as possible if the juvenile's remaining time at the center is less than thirty days. Individualized reentry plans should include specifics about the juvenile's placement upon return to the community, an education transition plan, a treatment plan with any necessary appointments being set prior to the juvenile leaving the center, and any other formal and informal supports for the juvenile and his or her family. The district probation officer and Office of Juvenile Services personnel shall review the individualized reentry plan and the expected outcomes as a result of the plan with the juvenile and his or her support system within thirty days prior to the juvenile's discharge from the center.

(5) The probation officer shall have contact with the juvenile and the juvenile's support system within forty-eight hours after the juvenile returns to the community and continue to assist the juvenile and the juvenile's support system in implementing and following the individualized reentry plan and monitoring the juvenile's risk through ongoing assessment updates.

(6) The Office of Probation Administration shall:

(a) Establish an evidence-based reentry process that utilizes risk assessment to determine the juvenile's supervision level upon return to the community;

(b) Establish supervision strategies based on risk levels of the juvenile and supervise accordingly, with ongoing reassessment to assist in determining eligibility for release from probation;

(c) Develop a formal matrix of graduated sanctions to be utilized prior to requesting the county attorney to file for probation revocation; and

(d) Provide training to its workers on risk-based supervision strategies, motivational interviewing, family engagement, community-based resources, and other evidence-based reentry strategies.

Source:Laws 2013, LB561, § 54; Laws 2014, LB464, § 29; Laws 2020, LB1188, § 11.

43-426. Visitation and communication; use as consequence or sanction; prohibited.

In-person visitation and other forms of communication, including telephone calls and electronic communication, with a juvenile's relatives, including, but not limited to, parents, guardians, grandparents, siblings, and children, shall not be limited or prohibited as a consequence or sanction.

Source:Laws 2020, LB1188, § 12.

43-427. Youth rehabilitation and treatment centers; five-year operations plan; reports.

(1) The Department of Health and Human Services shall develop a five-year operations plan for the youth rehabilitation and treatment centers and submit such operations plans electronically to the Health and Human Services Committee of the Legislature on or before March 15, 2021.

(2) The operations plan shall be developed with input from key stakeholders and shall include, but not be limited to:

(a) A description of the population served at each youth rehabilitation and treatment center;

(b) An organizational chart of supervisors and operations staff. The operations plan shall not allow for administrative staff to have oversight over more than one youth rehabilitation and treatment center and shall not allow for clinical staff to have responsibility over more than one youth rehabilitation and treatment center;

(d) A facility plan that considers taxpayer investments already made in the facility and the community support and acceptance of the juveniles in the community surrounding the youth rehabilitation and treatment center;

(e) A description of each rehabilitation program offered at the youth rehabilitation and treatment center;

(f) A description of each mental health treatment plan offered at the youth rehabilitation and treatment center;

(g) A description of reentry and discharge planning;

(h) A staffing plan that ensures adequate staffing;

(i) An education plan developed in collaboration with the State Department of Education;

(j) A capital improvements budget;

(k) An operating budget;

(l) A disaster recovery plan;

(m) A plan to segregate the juveniles by gender on separate campuses;

(n) A parenting plan for juveniles placed in a youth rehabilitation and treatment center who are parenting;

(o) A statement of the rights of juveniles placed at the youth rehabilitation and treatment centers, including a right to privacy, and the rights of parents or guardians;

(p) Quality and outcome measurements for tracking outcomes for juveniles when they are discharged from the youth rehabilitation and treatment center, including an exit survey of such juveniles;

(q) Key performance indicators to be included in the annual report required under this section;

(r) A requirement for trauma-informed training provided to staff;

(s) Methods and procedures for investigations at the youth rehabilitation and treatment center; and

(t) A grievance process for juveniles placed at the youth rehabilitation and treatment centers.

(3) The department shall submit a report electronically to the Clerk of the Legislature on or before December 15, 2021, and each December 15 thereafter regarding such operations plan and key performance indicators.

(4) In addition to the report required in subsection (3) of this section, the department shall update the Health and Human Services Committee of the Legislature on or before each March 15, June 15, and September 15, regarding the elements of the operations plan described in subdivisions (a), (d), (e), (f), and (m) of subsection (2) of this section, of any substantial changes planned before the next report, and of any substantial changes that have occurred to such facilities or programs. Nothing in this subsection shall be construed to limit or prevent the department from acting in accordance with sections 43-428 to 43-430 in the event of an emergency.

Source:Laws 2020, LB1140, § 2; Laws 2021, LB428, § 1.

43-428. Youth rehabilitation and treatment center; emergency plan.

(1) The Department of Health and Human Services shall develop an emergency plan for the Youth Rehabilitation and Treatment Center-Geneva, the Youth Rehabilitation and Treatment Center-Kearney, and any other facility operated and utilized as a youth rehabilitation and treatment center in compliance with state law.

(2) Each emergency plan shall:

(a) Identify and designate temporary placement facilities for the placement of juveniles in the event a youth rehabilitation and treatment center must be evacuated due to an emergency as defined in section 43-403. The administrator of a proposed temporary placement facility shall consent to be designated as a temporary placement facility in the emergency plan. A criminal detention facility or a juvenile detention facility shall only be designated as a temporary placement facility pursuant to section 43-430;

(b) Identify barriers to implementation of an effective emergency plan, including necessary administrative or legislative changes;

(c) Include procedures for the Office of Juvenile Services to provide reliable, effective, and timely notification that an emergency plan is to be implemented to:

(i) Staff at the youth rehabilitation and treatment center where the emergency plan is implemented and the administrator and staff at the temporary placement facility;

(ii) Juveniles placed at the youth rehabilitation and treatment center;

(iii) Families and legal guardians of juveniles placed at the youth rehabilitation and treatment center;

(iv) The State Court Administrator, in a form and manner prescribed by the State Court Administrator;

(v) The committing court of each juvenile placed at the youth rehabilitation and treatment center;

(vi) The chairperson of the Health and Human Services Committee of the Legislature; and

(vii) The office of Public Counsel and the office of Inspector General of Nebraska Child Welfare;

(d) Detail the plan for transportation of juveniles to a temporary placement facility; and

(e) Include methods and schedules for implementing the emergency plan.

(3) Each emergency plan shall be developed on or before December 15, 2020.

Source:Laws 2020, LB1140, § 6.

43-429. Emergency plan; requirements.

(1) The Department of Health and Human Services shall ensure that the administrator of each temporary placement facility described in an emergency plan required under section 43-428 consents to the temporary placement of juveniles placed in such facility pursuant to the emergency plan. Prior to inclusion in an emergency plan as a temporary placement facility, the department and the administrator of the temporary placement facility shall agree on a cost-reimbursement plan for the temporary placement of juveniles at such facility.

(2) If an emergency plan required under section 43-428 is implemented, the Office of Juvenile Services shall, at least twenty-four hours prior to implementation, if practical, and otherwise within twenty-four hours after implementation of such emergency plan, notify the persons and entities listed in subdivision (2)(c) of section 43-428.

Source:Laws 2020, LB1140, § 7.

43-430. Criminal detention facility; juvenile detention facility; emergency use.

In the event of an emergency and only after all other temporary placement options have been exhausted, the Office of Juvenile Services may provide for the placement of a juvenile for a period not to exceed seven days at a criminal detention facility, if allowed by law, or a juvenile detention facility, as such terms are defined in section 83-4,125.

Source:Laws 2020, LB1140, § 8.

43-431. Transportation of juveniles; policies and procedures; applicable to private contractor.

Policies and procedures of the Department of Health and Human Services regarding the transportation of juveniles placed at the youth rehabilitation and treatment centers shall apply to any private contractor utilized by the Office of Juvenile Services to transport juveniles placed at the youth rehabilitation and treatment centers.

Source:Laws 2020, LB1140, § 10.

43-501. Sections, how construed.

Sections 43-501 to 43-526 shall be construed to be new, supplemental, and independent legislation upon the subjects of assistance and services for delinquent, dependent, and medically handicapped children, and all provisions of law in regard thereto shall be and remain in full force and effect.

Source:Laws 1935, Spec. Sess., c. 30, § 1, p. 180; C.S.Supp.,1941, § 43-501; R.S.1943, § 43-501; Laws 1982, LB 522, § 11; Laws 1988, LB 790, § 25.

43-502. Repealed. Laws 1953, c. 237, § 11.

43-503. Department of Health and Human Services; duty to cooperate with other agencies.

The Department of Health and Human Services shall cooperate and coordinate its child and maternal welfare activities with those of state institutions, the vocational rehabilitation division of the State Department of Education, courts, county boards, charities and all other organizations, societies and agencies, state and national, to promote child welfare and health.

Source:Laws 1935, Spec. Sess., c. 30, § 3, p. 180; C.S.Supp.,1941, § 43-503; R.S.1943, § 43-503; Laws 1969, c. 342, § 2, p. 1204; Laws 1996, LB 1044, § 151.

43-504. Terms, defined; pregnancy; effect.

(1) The term dependent child shall mean a child under the age of nineteen years who is living with a relative or with a caretaker who is the child's legal guardian or conservator in a place of residence maintained by one or more of such relatives or caretakers as his, her, or their own home, or which child has been removed from the home of his or her father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first or second cousin, nephew, or niece as a result of judicial determination to the effect that continuation in the home would be contrary to the safety and welfare of the child and such child has been placed in a foster family home or child care institution as a result of such determination, when the state or any court having jurisdiction of such child is responsible for the care and placement of such child and one of the following conditions exists: (a) Such child received aid from the state in or for the month in which court proceedings leading to such determination were initiated; (b) such child would have received assistance in or for such month if application had been made therefor; or (c) such child had been living with such a relative specified in this subsection at any time within six months prior to the month in which such proceedings were initiated and would have received such aid in or for the month that such proceedings were initiated if in such month the child had been living with, and removed from the home of, such a relative and application had been made therefor.

(2) In awarding aid to dependent children payments, the term dependent child shall include an unborn child but only during the last three months of pregnancy. A pregnant woman may be eligible but only (a) if it has been medically verified that the child is expected to be born in the month such payments are made or expected to be born within the three-month period following such month of payment and (b) if such child had been born and was living with her in the month of payment, she would be eligible for aid to families with dependent children. As soon as it is medically determined that pregnancy exists, a pregnant woman who meets the other requirements for aid to dependent children shall be eligible for medical assistance.

(3) A physically or medically handicapped child shall mean a child who, by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury, or disease, is or may be expected to be totally or partially incapacitated for education or for remunerative occupation.

Source:Laws 1935, Spec. Sess., c. 30, § 4, p. 181; C.S.Supp.,1941, § 43-504; R.S.1943, § 43-504; Laws 1947, c. 157, § 1, p. 433; Laws 1959, c. 190, § 1, p. 692; Laws 1963, c. 254, § 1, p. 773; Laws 1965, c. 241, § 1, p. 687; Laws 1965, c. 242, § 1, p. 689; Laws 1967, c. 409, § 1, p. 1272; Laws 1969, c. 343, § 1, p. 1205; Laws 1969, c. 344, § 1, p. 1209; Laws 1973, LB 159, § 1; Laws 1975, LB 397, § 1; Laws 1981, Spec. Sess., LB 7, § 1; Laws 1988, LB 790, § 26; Laws 1992, Third Spec. Sess., LB 20, § 1; Laws 1995, LB 455, § 1; Laws 1997, LB 864, § 2; Laws 1998, LB 1041, § 32; Laws 2007, LB351, § 1.

43-504.01. Conditions of eligibility; partially or totally unemployed parent or needy caretaker.

As a condition of eligibility for aid for children included in section 43-504, a partially or totally unemployed parent or needy caretaker shall participate in the employment preparation or training program for aid to dependent children, unless considered exempt under rules and regulations adopted and promulgated by the Department of Health and Human Services, and any totally or partially unemployed parent or needy caretaker who fails or refuses without good cause to participate in the employment preparation or training program or who refuses without good cause to accept employment in which he or she is able to engage which will increase his or her ability to maintain himself or herself and his or her family shall be deemed by such refusal to have rendered his or her children ineligible for further aid until he or she has complied with this section.

The requirements of this section shall also apply to any dependent child unless he or she is under age sixteen or attending, full time, an elementary, secondary, or vocational school.

Source:Laws 1965, c. 242, § 2, p. 692; Laws 1981, Spec. Sess., LB 7, § 2; Laws 1996, LB 1044, § 152; Laws 1997, LB 864, § 3; Laws 2007, LB296, § 111.

43-504.02. Repealed. Laws 1967, c. 250, § 1.

43-505. Repealed. Laws 1982, LB 522, § 46.

43-506. Repealed. Laws 1982, LB 522, § 46.

43-507. Mentally and physically handicapped children; Department of Health and Human Services; duties.

The Department of Health and Human Services, on behalf of mentally and physically handicapped children, shall (1) obtain admission to state and other suitable schools, hospitals, or other institutions or care in their own homes or in family, free, or boarding homes for such children in accordance with the provisions of the existing law, (2) maintain medical supervision over such mentally or physically handicapped children, and (3) provide necessary medical or surgical care in a suitable hospital, sanitarium, preventorium, or other institution or in the child's own home or a home for any medically handicapped child needing such care and pay for such care from public funds, if necessary.

Source:Laws 1935, Spec. Sess., c. 30, § 7, p. 184; C.S.Supp.,1941, § 43-507; R.S.1943, § 43-507; Laws 1965, c. 243, § 1, p. 693; Laws 1967, c. 251, § 2, p. 662; Laws 1988, LB 790, § 27; Laws 1996, LB 1044, § 153; Laws 2007, LB296, § 112.

43-508. Department of Health and Human Services; cooperation with state institutions.

The Department of Health and Human Services shall cooperate with the state institutions for delinquent and mentally and physically handicapped children to ascertain the conditions of the home and the character and habits of the parents of a child, before his or her discharge from a state institution, and make recommendations as to the advisability of returning the child to his or her home. In case the department deems it unwise to have any such child returned to his or her former home, such state institution may, with the consent of the department, place such child into the care of the department.

Source:Laws 1935, Spec. Sess., c. 30, § 8, p. 184; C.S.Supp.,1941, § 43-508; R.S.1943, § 43-508; Laws 1989, LB 22, § 4; Laws 1996, LB 1044, § 154; Laws 2007, LB296, § 113.

43-509. Religious faith of children; preservation.

The religious faith of children coming under the jurisdiction of public welfare officials shall be preserved and protected.

Source:Laws 1935, Spec. Sess., c. 30, § 9, p. 184; C.S.Supp.,1941, § 43-509; R.S.1943, § 43-509.

43-510. Children eligible for assistance.

In order to be eligible for assistance, a child must be a bona fide resident of the State of Nebraska.

Source:Laws 1935, Spec. Sess., c. 30, § 10, p. 184; C.S.Supp.,1941, § 43-510; R.S.1943, § 43-510; Laws 1951, c. 129, § 1, p. 548; Laws 1969, c. 343, § 2, p. 1206.

43-511. Benefits extended to children in rural districts.

The Department of Health and Human Services shall extend the assistance and services herein provided for to all children in rural districts throughout this state, in order that the same benefits and facilities shall be available to children in such districts as in urban areas.

Source:Laws 1935, Spec. Sess., c. 30, § 11, p. 184; C.S.Supp.,1941, § 43-511; R.S.1943, § 43-511; Laws 1982, LB 522, § 12; Laws 1996, LB 1044, § 155; Laws 2007, LB296, § 114.

43-512. Application for assistance; procedure; maximum monthly assistance; payment; transitional benefits; terms, defined.

(1) Any dependent child as defined in section 43-504 or any relative or eligible caretaker of such a dependent child may file with the Department of Health and Human Services a written application for financial assistance for such child on forms furnished by the department.

(2) The department, through its agents and employees, shall make such investigation pursuant to the application as it deems necessary or as may be required by the county attorney or authorized attorney. If the investigation or the application for financial assistance discloses that such child has a parent or stepparent who is able to contribute to the support of such child and has failed to do so, a copy of the finding of such investigation and a copy of the application shall immediately be filed with the county attorney or authorized attorney.

(3) The department shall make a finding as to whether the application referred to in subsection (1) of this section should be allowed or denied. If the department finds that the application should be allowed, the department shall further find the amount of monthly assistance which should be paid with reference to such dependent child. Except as may be otherwise provided, payments shall be made by unit size and shall be consistent with subdivisions (1)(p), (1)(q), (1)(t), (1)(u), and (1)(v) of section 68-1713. Beginning on August 30, 2015, the maximum payment level for monthly assistance shall be fifty-five percent of the standard of need described in section 43-513.

No payments shall be made for amounts totaling less than ten dollars per month except in the recovery of overpayments.

(4) The amount which shall be paid as assistance with respect to a dependent child shall be based in each case upon the conditions disclosed by the investigation made by the department. An appeal shall lie from the finding made in each case to the chief executive officer of the department or his or her designated representative. Such appeal may be taken by any taxpayer or by any relative of such child. Proceedings for and upon appeal shall be conducted in the same manner as provided for in section 68-1016.

(5)(a) For the purpose of preventing dependency, the department shall adopt and promulgate rules and regulations providing for services to former and potential recipients of aid to dependent children and medical assistance benefits. The department shall adopt and promulgate rules and regulations establishing programs and cooperating with programs of work incentive, work experience, job training, and education. The provisions of this section with regard to determination of need, amount of payment, maximum payment, and method of payment shall not be applicable to families or children included in such programs. Income and assets described in section 68-1201 shall not be included in determination of need under this section.

(b) If a recipient of aid to dependent children becomes ineligible for aid to dependent children as a result of increased hours of employment or increased income from employment after having participated in any of the programs established pursuant to subdivision (a) of this subsection, the recipient may be eligible for the following benefits, as provided in rules and regulations of the department in accordance with sections 402, 417, and 1925 of the federal Social Security Act, as amended, Public Law 100-485, in order to help the family during the transition from public assistance to independence:

(i) An ongoing transitional payment that is intended to meet the family's ongoing basic needs which may include food, clothing, shelter, utilities, household goods, personal care items, and general incidental expenses during the five months following the time the family becomes ineligible for assistance under the aid to dependent children program, if the family's earned income is at or below one hundred eighty-five percent of the federal poverty level at the time the family becomes ineligible for the aid to dependent children program. Payments shall be made in five monthly payments, each equal to one-fifth of the aid to dependent children payment standard for the family's size at the time the family becomes ineligible for the aid to dependent children program. If during the five-month period, (A) the family's earnings exceed one hundred eighty-five percent of the federal poverty level, (B) the family members are no longer working, (C) the family ceases to be Nebraska residents, (D) there is no longer a minor child in the family's household, or (E) the family again becomes eligible for the aid to dependent children program, the family shall become ineligible for any remaining transitional benefits under this subdivision;

(ii) Child care as provided in subdivision (1)(c) of section 68-1724; and

(iii) Except as may be provided in accordance with subsection (2) of section 68-1713 and subdivision (1)(c) of section 68-1724, medical assistance for up to twelve months after the month the recipient becomes employed and is no longer eligible for aid to dependent children.

(6) For purposes of sections 43-512 to 43-512.18:

(a) Authorized attorney shall mean an attorney, employed by the county subject to the approval of the county board, employed by the department, or appointed by the court, who is authorized to investigate and prosecute child, spousal, and medical support cases. An authorized attorney shall represent the state as provided in section 43-512.03;

(b) Child support shall be defined as provided in section 43-1705;

(c) Medical support shall include all expenses associated with the birth of a child, cash medical support as defined in section 42-369, health care coverage as defined in section 44-3,144, and medical and hospital insurance coverage or membership in a health maintenance organization or preferred provider organization;

(d) Spousal support shall be defined as provided in section 43-1715;

(e) State Disbursement Unit shall be defined as provided in section 43-3341; and

(f) Support shall be defined as provided in section 43-3313.

Source:Laws 1935, Spec. Sess., c. 30, § 12, p. 185; C.S.Supp.,1941, § 43-512; R.S.1943, § 43-512; Laws 1945, c. 104, § 1, p. 338; Laws 1947, c. 158, § 1, p. 436; Laws 1951, c. 79, § 5, p. 240; Laws 1951, c. 130, § 1, p. 549; Laws 1953, c. 233, § 1, p. 809; Laws 1959, c. 191, § 1, p. 694; Laws 1967, c. 252, § 1, p. 671; Laws 1971, LB 639, § 1; Laws 1974, LB 834, § 1; Laws 1975, LB 192, § 1; Laws 1977, LB 179, § 1; Laws 1977, LB 425, § 1; Laws 1980, LB 789, § 1; Laws 1982, LB 522, § 13; Laws 1982, LB 942, § 3; Laws 1983, LB 371, § 12; Laws 1985, Second Spec. Sess., LB 7, § 65; Laws 1987, LB 573, § 2; Laws 1988, LB 518, § 1; Laws 1989, LB 362, § 3; Laws 1990, LB 536, § 1; Laws 1991, LB 457, § 5; Laws 1991, LB 715, § 7; Laws 1994, LB 1224, § 50; Laws 1995, LB 455, § 2; Laws 1996, LB 1044, § 156; Laws 1997, LB 864, § 4; Laws 2000, LB 972, § 17; Laws 2007, LB296, § 115; Laws 2007, LB351, § 2; Laws 2009, LB288, § 7; Laws 2014, LB359, § 2; Laws 2015, LB607, § 1; Laws 2016, LB1081, § 1; Laws 2024, LB233, § 1.
Effective Date: July 19, 2024

43-512.01. County attorney or authorized attorney; duty to take action against nonsupporting parent or stepparent; when.

It shall be the duty of the county attorney or authorized attorney when a copy of the finding of investigation or the application for financial assistance has been filed with him or her as provided in section 43-512, or when an application has been made pursuant to section 43-512.02, to immediately take action against the nonsupporting parent or stepparent of the dependent child. It shall be the duty of the county attorney or authorized attorney to initiate a child support enforcement action. If the county attorney initiates an action, he or she shall file either a criminal complaint for nonsupport under section 28-706 or a civil complaint against the nonsupporting parent or stepparent under section 43-512.03. If the attorney who initiates a child support enforcement action is an authorized attorney, he or she shall file a civil complaint against the nonsupporting parent or stepparent pursuant to section 43-512.03.

Source:Laws 1947, c. 158, § 2, p. 437; Laws 1951, c. 79, § 6, p. 241; Laws 1969, c. 343, § 4, p. 1207; Laws 1976, LB 926, § 4; Laws 1977, LB 425, § 2; Laws 1978, LB 748, § 28; Laws 1981, LB 345, § 1; Laws 1983, LB 371, § 13; Laws 1984, LB 845, § 33; Laws 1985, Second Spec. Sess., LB 7, § 66; Laws 2004, LB 1207, § 36.

Annotations

In civil child support action by county attorney, father's counterclaim requesting custody did not create conflict of interest for county attorney and the trial court erred in appointing a special prosecutor to replace the county attorney. State on behalf of Garcia v. Garcia, 238 Neb. 455, 471 N.W.2d 388 (1991).

43-512.02. Child, spousal, and medical support collection; paternity determination; services available; application; fees; costs.

(1) Any child or any relative, lawful custodian, guardian, or next friend of a child may file with the county attorney, authorized attorney, or other office designated by the Department of Health and Human Services an application for the same child, spousal, and medical support collection or paternity determination services as are provided to dependent children and their relatives under sections 43-512 to 43-512.10 by the department, the county attorney, the authorized attorney, and the clerk of the district court.

(2) If an office other than the office of the county attorney or authorized attorney is authorized by the department to accept such applications and if the application discloses that such child has a parent or stepparent who is able to contribute to the support of such child and has failed to do so, a copy of the application shall immediately be filed with the county attorney or authorized attorney.

(3)(a) The department shall determine an application fee to be charged to each individual who applies for services available in this section which shall not exceed the fee amount allowed by Title IV-D of the federal Social Security Act, as amended. The fee shall be collected from the individual or paid by the department on the individual's behalf. The county attorney or authorized attorney may recover the fee from the parent or stepparent who owes child, spousal, or medical support and reimburse the applicant. The governmental entity which is actually collecting the delinquent support payments shall collect the fee and send it to the department.

(b) The department may establish a schedule of amounts to be charged to recover any costs incurred in excess of any fees collected to cover administrative costs of providing the full scope of services required by state law. The department shall by regulation establish a schedule of amounts to be paid for such services based upon the actual costs incurred in providing such services. The schedule shall be made available to all applicants for such services. Any amount charged to recover costs may be collected from the parent or stepparent who owes child, spousal, or medical support or from the individual who has applied for enforcement services, either directly from such individual or from the child or spousal support collected, but only if the individual has been notified that the county attorney or authorized attorney will recover costs from an individual who receives enforcement services. The department shall not impose an application fee for services in any case in which the department is authorized to continue to collect and distribute support payments after a family ceases to receive aid to dependent children payments.

Source:Laws 1981, LB 345, § 2; Laws 1983, LB 371, § 14; Laws 1984, LB 845, § 34; Laws 1985, Second Spec. Sess., LB 7, § 67; Laws 1991, LB 457, § 6; Laws 1996, LB 1044, § 157; Laws 1997, LB 307, § 59.

43-512.03. County attorney or authorized attorney; duties; enumerated; department; powers; actions; real party in interest; representation; section, how construed.

(1) The county attorney or authorized attorney shall:

(a) On request by the Department of Health and Human Services as described in subsection (2) of this section or when the investigation or application filed under section 43-512 or 43-512.02 justifies, file a complaint against a nonsupporting party in the district, county, or separate juvenile court praying for an order for child or medical support in cases when there is no existing child or medical support order. After notice and hearing, the court shall adjudicate the child and medical support liability of either party and enter an order accordingly;

(b) Enforce child, spousal, and medical support orders by an action for income withholding pursuant to the Income Withholding for Child Support Act;

(c) In addition to income withholding, enforce child, spousal, and medical support orders by other civil actions or administrative actions, citing the defendant for contempt, or filing a criminal complaint;

(d) Establish paternity and collect child and medical support on behalf of children born out of wedlock; and

(e) Carry out sections 43-512.12 to 43-512.18.

(2) The department may periodically review cases of individuals receiving enforcement services and make referrals to the county attorney or authorized attorney.

(3) In any action brought by or intervened in by a county attorney or authorized attorney under the Income Withholding for Child Support Act, the License Suspension Act, the Uniform Interstate Family Support Act, or sections 42-347 to 42-381, 43-290, 43-512 to 43-512.18, 43-1401 to 43-1418, and 43-3328 to 43-3339, such attorneys shall represent the State of Nebraska.

(4) The State of Nebraska shall be a real party in interest in any action brought by or intervened in by a county attorney or authorized attorney for the purpose of establishing paternity or securing, modifying, suspending, or terminating child or medical support or in any action brought by or intervened in by a county attorney or authorized attorney to enforce an order for child, spousal, or medical support.

(5) Nothing in this section shall be construed to interpret representation by a county attorney or an authorized attorney as creating an attorney-client relationship between the county attorney or authorized attorney and any party or witness to the action, other than the State of Nebraska, regardless of the name in which the action is brought.

Source:Laws 1976, LB 926, § 5; Laws 1977, LB 425, § 3; Laws 1981, LB 345, § 3; Laws 1982, LB 522, § 14; Laws 1983, LB 371, § 15; Laws 1985, Second Spec. Sess., LB 7, § 68; Laws 1986, LB 600, § 12; Laws 1987, LB 37, § 1; Laws 1991, LB 457, § 7; Laws 1991, LB 715, § 8; Laws 1994, LB 1224, § 51; Laws 1995, LB 3, § 1; Laws 1996, LB 1044, § 158; Laws 1997, LB 229, § 36; Laws 1997, LB 307, § 60; Laws 1997, LB 752, § 98; Laws 2004, LB 1207, § 37; Laws 2009, LB288, § 8.

Cross References

Income Withholding for Child Support Act, see section 43-1701.

License Suspension Act, see section 43-3301.

Uniform Interstate Family Support Act, see section 42-701.

Annotations

As a prerequisite for an action under this section, there cannot be an existing child support order in Nebraska or any other jurisdiction. State ex rel. Gaddis v. Gaddis, 237 Neb. 264, 465 N.W.2d 773 (1991).

The remedy specified in this section is a means by which the State, as the real party in interest, may recover amounts which it has paid or is obligated to pay on behalf of a dependent child. Thus, the State's right to sue under this section is conditioned upon the payment of public assistance benefits for a minor child. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).

The Nebraska Court of Appeals has found no authority stating that the request from the Department of Health and Human Services is necessary evidence for the State to have standing in a contempt action under this section. House v. House, 24 Neb. App. 595, 894 N.W.2d 362 (2017).

The nonexistence of a support order is a prerequisite to an action by the State to establish support under this section, and a dissolution decree or modification order which addresses the issue of support, even if ordering that no support is due from either party, constitutes a support order which precludes the State from instituting such an action. State ex rel. Cammarata v. Chambers, 6 Neb. App. 467, 574 N.W.2d 530 (1998).

43-512.04. Child support or medical support; separate action allowed; procedure; presumption; decree; contempt.

(1) An action for child support or medical support may be brought separate and apart from any action for dissolution of marriage. The complaint initiating the action shall be filed with the clerk of the district court and may be heard by the county court or the district court as provided in section 25-2740. Such action for support may be filed on behalf of a child:

(a) Whose paternity has been established (i) by prior judicial order in this state, (ii) by a prior determination of paternity made by any other state or by an Indian tribe as described in subsection (1) of section 43-1406, or (iii) by the marriage of his or her parents as described in section 42-377 or subsection (2) of section 43-1406; or

(b) Whose paternity is presumed as described in section 43-1409 or subsection (2) of section 43-1415.

(2) The father, not having entered into a judicially approved settlement or being in default in the performance of the same, may be made a respondent in such action. The mother of the child may also be made a respondent in such an action. Such action shall be commenced by a complaint of the mother of the child, the father of the child whose paternity has been established, the guardian or next friend of the child, the county attorney, or an authorized attorney.

(3) The complaint shall set forth the basis on which paternity was previously established or presumed, if the respondent is the father, and the fact of nonsupport and shall ask that the father, the mother, or both parents be ordered to provide for the support of the child. Summons shall issue against the father, the mother, or both parents and be served as in other civil proceedings, except that such summons may be directed to the sheriff of any county in the state and may be served in any county. The method of trial shall be the same as in actions formerly cognizable in equity, and jurisdiction to hear and determine such actions for support is hereby vested in the district court of the district or the county court of the county where the child is domiciled or found or, for cases under the Uniform Interstate Family Support Act if the child is not domiciled or found in Nebraska, where the parent of the child is domiciled.

(4) In such proceeding, if the defendant is the presumed father as described in subdivision (1)(b) of this section, the court shall make a finding whether or not the presumption of paternity has been rebutted. The presumption of paternity created by acknowledgment as described in section 43-1409 may be rebutted as part of an equitable proceeding to establish support by genetic testing results which exclude the alleged father as being the biological father of the child. A court in such a proceeding may order genetic testing as provided in sections 43-1414 to 43-1418.

(5) If the court finds that the father, the mother, or both parents have failed adequately to support the child, the court shall issue a decree directing him, her, or them to do so, specifying the amount of such support, the manner in which it shall be furnished, and the amount, if any, of any court costs and attorney's fees to be paid by the father, the mother, or both parents. Income withholding shall be ordered pursuant to the Income Withholding for Child Support Act. The court may require the furnishing of bond to insure the performance of the decree in the same manner as is provided for in section 42-358.05 or 43-1405. Failure on the part of the defendant to perform the terms of such decree shall constitute contempt of court and may be dealt with in the same manner as other contempts. The court may also order medical support and the payment of expenses as described in section 43-1407.

Source:Laws 1976, LB 926, § 6; Laws 1991, LB 457, § 8; Laws 1994, LB 1224, § 52; Laws 1996, LB 1296, § 22; Laws 1997, LB 229, § 37; Laws 2004, LB 1207, § 38; Laws 2015, LB566, § 2.

Cross References

Income Withholding for Child Support Act, see section 43-1701.

Uniform Interstate Family Support Act, see section 42-701.

Annotations

Any order imposing an obligation of child support is necessarily a legal determination of paternity. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).

When making a determination of child support under section 42-364, the court must take into account and give effect to an existing order of support under this section. The court may order the existing order to remain in effect without modification after considering whether modification is warranted. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).

Subsection (5) of this section specifically provides that attorney fees and costs are allowed in paternity and child support cases brought by a child's mother, father, or guardian or next friend, the county attorney, or another authorized attorney. To the extent State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), holds otherwise, it is overruled. Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).

Child support orders entered under sections 42-347 to 42-379 must give effect to child support orders under this section. Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (1985).

This section provides that attorney fees and costs are recoverable in paternity and child support cases, and an award of such fees and costs will be upheld on appeal absent an abuse of discretion. Morrill County on Behalf of Cahoy v. Darsaklis, 7 Neb. App. 489, 584 N.W.2d 36 (1998).

43-512.05. Child, spousal, and medical support payments; district court clerks; furnish information; cooperative agreements; reimbursement for costs incurred.

(1) It shall be the duty of the clerks of the district courts to furnish the Department of Health and Human Services monthly statistical information and any other information required by the department to properly account for child, spousal, and medical support payments. The clerk of each district court shall negotiate and enter into a written agreement with the department in order to receive reimbursement for the costs incurred in carrying out sections 43-512 to 43-512.10 and 43-512.12 to 43-512.18.

(2) The department and the governing board of the county, county attorney, or authorized attorney may enter into a written agreement regarding the determination of paternity and child, spousal, and medical support enforcement for the purpose of implementing such sections. Paternity shall be established when it can be determined that the collection of child support is feasible.

(3) The department shall adopt and promulgate rules and regulations regarding the rate and manner of reimbursement for costs incurred in carrying out such sections, taking into account relevant federal law, available federal funds, and any appropriations made by the Legislature. Any reimbursement funds shall be added to the budgets of those county officials who have performed the services as called for in the cooperative agreements and carried over from year to year as required by law.

Source:Laws 1976, LB 926, § 7; Laws 1978, LB 960, § 2; Laws 1981, LB 345, § 4; Laws 1983, LB 371, § 16; Laws 1983, LB 417, § 1; Laws 1985, Second Spec. Sess., LB 7, § 69; Laws 1991, LB 457, § 9; Laws 1991, LB 715, § 9; Laws 1996, LB 1044, § 159; Laws 1997, LB 307, § 61.

Annotations

To the extent that a county board has already appropriated sufficient funding to pay the necessary salaries and expenses for performing child support enforcement duties, the board is entitled to deposit federal reimbursement funds into its general fund. But for any reimbursement funds that the county is not entitled to keep, subsection (3) of this section plainly requires such funds to be carried over from year to year in the county attorney's budget when his or her office is performing all of the child support enforcement duties. Wetovick v. County of Nance, 279 Neb. 773, 782 N.W.2d 298 (2010).

43-512.06. Locating absent parents; determining income and employer; access to information; assistance; purpose.

(1) Notwithstanding any other provisions of law regarding confidentiality of records, every department and agency of state, county, and city government and every employer or other payor as defined in section 43-1709 shall assist and cooperate with the Department of Health and Human Services in locating absent parents, determining an absent parent's income and health insurance information, and identifying an absent parent's employer only for the purposes of establishing and collecting child, spousal, and medical support and of conducting reviews under sections 43-512.12 to 43-512.18. Such information shall be used for no other purpose. An action may be filed in district court to enforce this subsection.

(2) Notwithstanding any other provision of law regarding confidentiality of records, every public, private, or municipal utility shall, upon request, furnish to any county attorney, authorized attorney, or the Department of Health and Human Services a subscriber's name, social security number, and mailing and residence addresses only for the purposes of establishing and collecting child, spousal, and medical support and of conducting reviews under sections 43-512.12 to 43-512.18. Such information shall be used for no other purpose. An action may be filed in district court to enforce this subsection. For purposes of this subsection, utility shall mean any entity providing electrical, gas, water, telephone, garbage disposal, or waste disposal service, including, but not limited to, any district or corporation organized under Chapter 70.

Source:Laws 1976, LB 926, § 8; Laws 1985, Second Spec. Sess., LB 7, § 70; Laws 1991, LB 457, § 10; Laws 1991, LB 715, § 10; Laws 1994, LB 1224, § 53; Laws 1996, LB 1044, § 160; Laws 1997, LB 307, § 62.

43-512.07. Assignment of child, spousal, or medical support payments; when; duration; notice; unpaid court-ordered support; how treated; pass-through amounts; how treated.

(1) Any action, payment, aid, or assistance listed in this subsection shall constitute an assignment by operation of law to the Department of Health and Human Services of any right to spousal or medical support, when ordered by the court, and to child support, whether or not ordered by the court, which a person may have in his or her own behalf or on behalf of any other person for whom such person receives such payments, aid, or assistance:

(a) Application for and acceptance of one or more aid to dependent children payments by a parent, another relative, or a custodian;

(b) Receipt of aid by or on behalf of any dependent child as defined in section 43-504; or

The assignment under this section is the right to support payments that become due while the person is receiving payments, aid, or assistance listed in this subsection. The department shall be entitled to retain such spousal or other support up to the amount of payments, aid, or assistance provided to a recipient. For purposes of this section, the right to receive child support shall belong to the child and the assignment shall be effective as to any such support even if the recipient of the payments, aid, or assistance is not the same as the payee of court-ordered support.

(2) After notification of the State Disbursement Unit receiving the child, spousal, or other support payments made pursuant to a court order that the person for whom such support is ordered is a recipient of payments, aid, or assistance listed in subsection (1) of this section, the department shall also give notice to the payee named in the court order at his or her last-known address.

(3) Upon written or other notification from the department or from another state of such assignment of child, spousal, or other support payments, the State Disbursement Unit shall transmit the support payments received to the department or the other state without the requirement of a subsequent order by the court. The State Disbursement Unit shall continue to transmit the support payments for as long as the payments, aid, or assistance listed in subsection (1) of this section continues.

(4) Any court-ordered child, spousal, or other support remaining unpaid for the months during which such payments, aid, or assistance was made shall constitute a debt and a continuing assignment at the termination of payments, aid, or assistance listed in subsection (1) of this section, collectible by the department or other state as reimbursement for such payments, aid, or assistance. The continuing assignment shall only apply to support payments made during a calendar period which exceed the specific amount of support ordered for that period. When payments, aid, or assistance listed in subsection (1) of this section have ceased and upon notice by the department or the other state, the State Disbursement Unit shall continue to transmit to the department or the other state any support payments received in excess of the amount of support ordered for that specific calendar period until notified by the department or the other state that the debt has been paid in full.

(5) Beginning July 1, 2027, the department shall pass through an amount not exceeding one hundred dollars per month, or in the case of a family with two or more children, an amount not exceeding two hundred dollars per month, to the recipient of any payments, aid, or assistance listed in subdivision (1)(a) of this section, from the current child support collected pursuant to the assignment. Such pass-through amounts shall not be considered income for the purpose of calculating a recipient's eligibility for assistance. The department shall disregard the amount of child support passed through to the recipient in calculating the amount of the recipient's monthly assistance payment.

Source:Laws 1976, LB 926, § 9; Laws 1981, LB 345, § 5; Laws 1985, Second Spec. Sess., LB 7, § 71; Laws 1986, LB 600, § 13; Laws 1987, LB 599, § 13; Laws 1991, LB 457, § 11; Laws 1993, LB 435, § 3; Laws 1995, LB 524, § 1; Laws 1996, LB 1044, § 161; Laws 1997, LB 307, § 63; Laws 2000, LB 972, § 18; Laws 2009, LB288, § 9; Laws 2024, LB233, § 2.
Effective Date: July 19, 2024

43-512.08. Intervention in matters relating to child, spousal, or medical support; when authorized.

The county attorney or authorized attorney, acting for or on behalf of the State of Nebraska, may intervene without leave of the court in any proceeding for dissolution of marriage, paternity, separate maintenance, or child, spousal, or medical support for the purpose of securing an order for child, spousal, or medical support, modifying an order for child or medical support, or modifying an order for child support as the result of a review of such order under sections 43-512.12 to 43-512.18. Such proceedings shall be limited only to the determination of child or medical support. Except in cases in which the intervention is the result of a review under such sections, the county attorney or authorized attorney shall so act only when it appears that the children are not otherwise represented by counsel.

Source:Laws 1976, LB 926, § 10; Laws 1985, Second Spec. Sess., LB 7, § 72; Laws 1991, LB 457, § 12; Laws 1991, LB 715, § 11; Laws 1994, LB 1224, § 54; Laws 2007, LB554, § 41.

43-512.09. Garnishment for collection of child support or medical support; where filed.

A garnishment for the collection of child support or medical support may be filed in any jurisdiction where any property or credits of the defendant may be found irrespective of the residence of the creditors or the place where the debt is payable.

Source:Laws 1976, LB 926, § 11; Laws 1991, LB 457, § 13.

43-512.10. Sections, how construed.

Sections 43-512 to 43-512.10 and 43-512.12 to 43-512.18 shall be interpreted so as to facilitate the determination of paternity, child, spousal, and medical support enforcement, and the conduct of reviews under such sections.

Source:Laws 1976, LB 926, § 12; Laws 1978, LB 960, § 3; Laws 1981, LB 345, § 6; Laws 1985, Second Spec. Sess., LB 7, § 73; Laws 1991, LB 457, § 14; Laws 1991, LB 715, § 12.

43-512.11. Work and education programs; department; report.

The Department of Health and Human Services shall submit electronically an annual report, not later than February 1 of each year, to the Legislature regarding the effectiveness of programs established pursuant to subdivision (5)(a) of section 43-512. The report shall include, but not be limited to:

(1) The number of program participants;

(2) The number of program participants who become employed, whether such employment is full time or part time or subsidized or unsubsidized, and whether the employment was retained for at least thirty days;

(3) Supportive services provided to participants in the program;

(4) Grant reductions realized; and

(5) A cost and benefit statement for the program.

Source:Laws 1988, LB 518, § 2; Laws 1996, LB 1044, § 162; Laws 2007, LB296, § 116; Laws 2012, LB782, § 45.

43-512.12. Title IV-D child support order; review by Department of Health and Human Services; when; noncustodial parent incarcerated; notice to parents.

(1) Child support orders in cases in which a party has applied for services under Title IV-D of the federal Social Security Act, as amended, shall be reviewed by the Department of Health and Human Services to determine whether to refer such orders to the county attorney or authorized attorney for filing of an application for modification. An order shall be reviewed by the department upon its own initiative or at the request of either parent when such review is required by Title IV-D of the federal Social Security Act, as amended. After review the department shall refer an order to a county attorney or authorized attorney when the verifiable financial information available to the department indicates:

(a) The present child support obligation varies from the Supreme Court child support guidelines pursuant to section 42-364.16 by more than the percentage, amount, or other criteria established by Supreme Court rule, and the variation is due to financial circumstances which have lasted at least three months and can reasonably be expected to last for an additional six months; or

(b) Health care coverage meeting the requirements of subsection (2) of section 42-369 is available to either party and the children do not have health care coverage other than the medical assistance program under the Medical Assistance Act.

Health care coverage cases may be modified within three years of entry of the order.

(2) Orders that are not addressed under subsection (1) of this section shall not be reviewed by the department if it has not been three years since the present child support obligation was ordered unless the requesting party demonstrates a substantial change in circumstances that is expected to last for the applicable time period established by subdivision (1)(a) of this section. Such substantial change in circumstances may include, but is not limited to, change in employment, earning capacity, or income or receipt of an ongoing source of income from a pension, gift, lottery winnings, casino winnings, parimutuel winnings, sports wagering winnings, or cash device winnings. An order may be reviewed after one year if the department's determination after the previous review was not to refer to the county attorney or authorized attorney for filing of an application for modification because financial circumstances had not lasted or were not expected to last for the time periods established by subdivision (1)(a) of this section.

(3) Notwithstanding the time periods set forth in subdivision (1)(a) of this section, within fifteen business days of learning that a noncustodial parent will be incarcerated for more than one hundred eighty calendar days, the department shall send notice by first-class mail to both parents informing them of the right to request the state to review and, if appropriate, adjust the order. Such notice shall be sent to the incarcerated parent at the address of the facility at which the parent is incarcerated.

Source:Laws 1991, LB 715, § 13; Laws 1993, LB 523, § 8; Laws 1996, LB 1044, § 163; Laws 1997, LB 307, § 64; Laws 1997, LB 752, § 99; Laws 2006, LB 1248, § 54; Laws 2009, LB288, § 10; Laws 2010, LB712, § 25; Laws 2018, LB702, § 2; Laws 2024, LB1317, § 57.
Operative Date: July 19, 2024

Cross References

Medical Assistance Act, see section 68-901.

43-512.13. Title IV-D child support order; review; notice requirements; additional review.

(1) When review of a child support order pursuant to section 43-512.12 has been requested by one of the parents or initiated by the Department of Health and Human Services, the department shall send notice of the pending review to each parent affected by the order at the parent's last-known mailing address thirty days before the review is conducted. Such review shall require the parties to submit financial information as provided in sections 43-512.14 and 43-512.17.

(2) After the department completes the review of the child support order in accordance with section 43-512.12, it shall send notice to each parent of the determination to refer or not refer the order to the county attorney or authorized attorney for filing of an application for modification of the order in the district court. Each parent shall be allowed thirty days to submit to the department a written request for a review of such determination. The parent requesting review shall submit the request in writing to the department, stating the reasons for the request and providing written evidence to support the request. The department shall review the available verifiable financial information and make a final determination whether or not to refer the order to the county attorney or authorized attorney for filing of an application for modification of the child support order. Written notice of such final determination shall be sent to each parent affected by the order at the parent's last-known mailing address. A final determination under this subsection shall not be considered a contested case for purposes of the Administrative Procedure Act.

Source:Laws 1991, LB 715, § 14; Laws 1996, LB 1044, § 164; Laws 1997, LB 307, § 65.

Cross References

Administrative Procedure Act, see section 84-920.

43-512.14. Title IV-D child support order; financial information; duty to provide; failure; effect; referral of order; effect.

Each parent requesting review shall provide the financial information as provided in section 43-512.17 to the Department of Health and Human Services upon request of the department. The parent requesting review shall also provide an affidavit regarding the financial circumstances of the nonrequesting parent upon the request of the department. Failure by a nonrequesting parent to provide adequate financial information shall create a rebuttable presumption that such parent's income has changed for purposes of section 43-512.12.

Referral of an order to a county attorney or authorized attorney under this section shall create a rebuttable presumption that there has been a material change in financial circumstances of one of the parents such that the child support obligation shall be increased at least ten percent if there is inadequate financial information regarding the noncustodial parent or that the child support obligation shall be decreased at least ten percent if there is inadequate financial information regarding the custodial parent. Such referral shall also be sufficient to rebut the presumption specified in section 42-364.16, and the court, after notice and an opportunity to be heard, may order a decrease or an increase of at least ten percent in the child support obligation as provided in this section.

Source:Laws 1991, LB 715, § 15; Laws 1993, LB 523, § 9; Laws 1996, LB 1044, § 165; Laws 1997, LB 307, § 66.

43-512.15. Title IV-D child support order; modification; when; procedures.

(1) The county attorney or authorized attorney, upon referral from the Department of Health and Human Services, shall file a complaint to modify a child support order unless the attorney determines in the exercise of independent professional judgment that:

(a) The variation from the Supreme Court child support guidelines pursuant to section 42-364.16 is based on material misrepresentation of fact concerning any financial information submitted to the attorney;

(b) The variation from the guidelines is due to a voluntary reduction in net monthly income. Incarceration may not be treated as voluntary unemployment in establishing or modifying support orders; or

(c) When the amount of the order is considered with all the other undisputed facts in the case, no variation from the criteria set forth in subdivisions (1)(a) and (b) of section 43-512.12 exists.

(2) The proceedings to modify a child support order shall comply with section 42-364, and the county attorney or authorized attorney shall represent the state in the proceedings.

(3) After a complaint to modify a child support order is filed, any party may choose to be represented personally by private counsel. Any party who retains private counsel shall so notify the county attorney or authorized attorney in writing.

Source:Laws 1991, LB 715, § 16; Laws 1993, LB 523, § 10; Laws 1996, LB 1044, § 166; Laws 1997, LB 307, § 67; Laws 2004, LB 1207, § 39; Laws 2007, LB554, § 42; Laws 2008, LB1014, § 43; Laws 2009, LB288, § 11; Laws 2010, LB712, § 26; Laws 2018, LB702, § 3.

Annotations

An individual who has been incarcerated for the minimum period of time specified in this section may file a complaint seeking modification of his or her child support obligation upon the basis that his or her incarceration is an involuntary reduction of income, unless the circumstances contained in subsection (1)(b) of this section are met. Rouse v. Rouse, 18 Neb. App. 128, 775 N.W.2d 457 (2009).

The statutory minimum period of incarceration is not limited to that occurring after sentencing, because a person continuously jailed while awaiting trial faces the same reduction in income as a person continuously incarcerated after sentencing. Rouse v. Rouse, 18 Neb. App. 128, 775 N.W.2d 457 (2009).

A child support obligor's incarceration is considered an involuntary reduction in income for purposes of modification when the obligor has been incarcerated for the statutorily specified minimum period of time, unless the circumstances contained in subsection (1)(b) of this section are met. Hopkins v. Stauffer, 18 Neb. App. 116, 775 N.W.2d 462 (2009).

43-512.16. Title IV-D child support order; review of health care coverage provisions.

The county attorney or authorized attorney shall review the health care coverage provisions contained in any child support order which is subject to review under section 43-512.12 and shall include in any application for modification a request that the court order health care coverage or cash medical support as provided in subsection (2) of section 42-369.

Source:Laws 1991, LB 715, § 17; Laws 2009, LB288, § 12.

43-512.17. Title IV-D child support order; financial information; disclosure; contents.

Any financial information provided to the Department of Health and Human Services, the county attorney, or the authorized attorney by either parent for the purpose of facilitating a modification proceeding under sections 43-512.12 to 43-512.18 may be disclosed to the other parties to the case or to the court. Financial information shall include the following:

(1) An affidavit of financial status provided by the party requesting review;

(2) An affidavit of financial status of the nonrequesting party provided by the nonrequesting party or by the requesting party at the request of the county attorney or authorized attorney;

(3) Supporting documentation such as state and federal income tax returns, paycheck stubs, W-2 forms, 1099 forms, bank statements, and other written evidence of financial status; and

(4) Information relating to health care coverage as provided in subsection (2) of section 42-369.

Source:Laws 1991, LB 715, § 18; Laws 1993, LB 523, § 11; Laws 1996, LB 1044, § 167; Laws 1996, LB 1296, § 23; Laws 1997, LB 307, § 68; Laws 2009, LB288, § 13.

43-512.18. Title IV-D child support order; communication technology; use authorized.

A court may use any available technology that would allow the parties to communicate with each other to conduct a hearing or any proceeding required pursuant to sections 43-512.12 to 43-512.17.

Source:Laws 1991, LB 715, § 19.

43-513. Aid to dependent children; standard of need; adjustment; limitation.

The standard of need for aid to dependent children payments shall be adjusted on July 1 of every second year beginning July 1, 1997. The adjustment shall be made on the basis of the rate of growth of the Consumer Price Index as determined by the United States Department of Labor, Bureau of Labor Statistics, for the two previous calendar years. The aid to dependent children payment made shall not be greater than the amount specified by section 43-512.

Source:Laws 1995, LB 455, § 19.

43-513.01. Judgment for child support; death of judgment debtor.

A judgment for child support shall not abate upon the death of the judgment debtor.

Source:Laws 1984, LB 657, § 1.

43-514. Payments; to whom made.

Payments of assistance with respect to any dependent child shall be made to any person or persons in whose home the residence of such child is maintained.

Source:Laws 1935, Spec. Sess., c. 30, § 14, p. 186; C.S.Supp.,1941, § 43-514; R.S.1943, § 43-514; Laws 1969, c. 344, § 2, p. 1210; Laws 1973, LB 159, § 2; Laws 1982, LB 522, § 15.

43-515. Department of Health and Human Services; investigations; approval or disapproval of application; notice.

In each case the Department of Health and Human Services shall make such investigation and reinvestigations as may be necessary to determine family circumstances and eligibility for assistance payments. Each applicant and recipient shall be notified in writing as to the approval or disapproval of any application, as to the amount of payments awarded, as to any change in the amount of payments awarded, and as to the discontinuance of payments.

Source:Laws 1935, Spec. Sess., c. 30, § 5, p. 186; Laws 1939, c. 114, § 2, p. 491; C.S.Supp.,1941, § 43-515; R.S.1943, § 43-515; Laws 1967, c. 253, § 1, p. 673; Laws 1977, LB 312, § 1; Laws 1982, LB 522, § 16; Laws 1996, LB 1044, § 168; Laws 2007, LB296, § 117.

43-516. Department of Health and Human Services; participants in aid to dependent children; collect data and information.

The Department of Health and Human Services shall collect the following data and information yearly:

(1) The total number of participants in the aid to dependent children program described in section 43-512 pursuing an associate degree;

(2) Graduation rates of such participants, the number of participants that are making satisfactory progress in their educational pursuits, and the length of time participants participate in education to fulfill their work requirement under the program;

(3) The monthly earnings, educational level attained, and employment status of such participants at six months and at twelve months after terminating participation in the aid to dependent children program; and

(4) A summary of activities performed by the department to promote postsecondary educational opportunities to participants in the aid to dependent children program.

Source:Laws 2012, LB842, § 2.

43-517. Department of Health and Human Services; report; public record.

(1) The Department of Health and Human Services shall provide a report to the Governor and the Legislature no later than December 1 each year regarding the data and information collected pursuant to section 43-516, including a summary of such data and information. The report submitted to the Legislature shall be submitted electronically.

(2) The data and information collected under such section shall be considered a public record under section 84-712.01.

Source:Laws 2012, LB842, § 3; Laws 2013, LB222, § 8.

43-518. Repealed. Laws 1965, c. 394, § 6.

43-519. Repealed. Laws 1965, c. 394, § 6.

43-520. Repealed. Laws 1965, c. 394, § 6.

43-521. Repealed. Laws 1965, c. 394, § 6.

43-522. State assistance funds; how expended; medical care.

The Department of Health and Human Services shall expend state assistance funds allocated for medically handicapped children to supplement other state, county, and municipal, benevolent, fraternal, and charitable expenditures, to extend and improve, especially in rural areas and in areas suffering from severe economic distress, services for locating physically and medically handicapped children and for providing medical, surgical, correction, and other services and care, and facilities for diagnosis, hospitalization, and aftercare, for children who are physically or medically handicapped or who are suffering from conditions which lead to medical handicaps. Expenditures and services shall be uniformly distributed so far as possible or practicable under conditions and circumstances which may be found to exist.

Source:Laws 1935, Spec. Sess., c. 30, § 22, p. 188; C.S.Supp.,1941, § 43-522; R.S.1943, § 43-522; Laws 1988, LB 790, § 28; Laws 1996, LB 1044, § 169; Laws 2006, LB 994, § 54; Laws 2007, LB296, § 118.

43-523. Department of Health and Human Services; reports.

The Department of Health and Human Services shall make such reports to the Department of Health and Human Services of the United States in such form and containing such information as such department may from time to time require, and the department shall comply with such provisions as necessary to assure the correctness of such reports.

Source:Laws 1935, Spec. Sess., c. 30, § 23, p. 188; C.S.Supp.,1941, § 43-523; R.S.1943, § 43-523; Laws 1961, c. 204, § 2, p. 612; Laws 1961, c. 415, § 4, p. 1246; Laws 1996, LB 1044, § 170; Laws 2007, LB296, § 119.

43-524. Department of Health and Human Services; duty to cooperate with other welfare agencies.

The Department of Health and Human Services shall cooperate with medical, health, nursing, and welfare groups and organizations and with any agency in the state charged with providing for local rehabilitation of physically handicapped children.

Source:Laws 1935, Spec. Sess., c. 30, § 24, p. 188; C.S.Supp.,1941, § 43-524; R.S.1943, § 43-524; Laws 1996, LB 1044, § 171; Laws 2006, LB 994, § 55; Laws 2007, LB296, § 120.

43-525. Child welfare services; state assistance funds; expenditure.

The Department of Health and Human Services shall expend state assistance funds allocated for child welfare services in establishing, extending, and strengthening, especially in rural areas, child welfare services mentioned in sections 43-501 to 43-526, for which other funds are not specifically or sufficiently made available by such sections or other laws of this state.

Source:Laws 1935, Spec. Sess., c. 30, § 25, p. 189; C.S.Supp.,1941, § 43-525; R.S.1943, § 43-525; Laws 1982, LB 522, § 17; Laws 1996, LB 1044, § 172; Laws 2007, LB296, § 121.

43-526. State agencies; distribution of funds; uniformity; assumption of obligations; limit.

The state agencies provided for herein shall distribute and cause said funds to be used in as uniform and equal a manner as practicable for the benefit of the children to be assisted by such services, taking into consideration the health, moral surroundings, sanitary conditions, parental responsibility, mentality and other circumstances of each case. Obligations assumed shall not exceed income of the fund for child welfare for any given month, plus any balance remaining from a preceding month in such fund.

Source:Laws 1935, Spec. Sess., c. 30, § 26, p. 189; C.S.Supp.,1941, § 43-526; R.S.1943, § 43-526.

43-527. Repealed. Laws 1982, LB 522, § 46.

43-528. Repealed. Laws 1982, LB 522, § 46.

43-529. Aid to dependent children; needs of persons with whom child is living; payment; requirements.

(1) Payments with respect to any dependent child, including payments to meet the needs of the relative with whom such child is living, such relative's spouse, and the needs of any other individual living in the same home as such child and relative if such needs are taken into account in making the determination for eligibility of such child to receive aid to families with dependent children, may be made on behalf of such child, relative, and other person to either (a) another individual who, in accordance with standards set by the Department of Health and Human Services, is interested in or concerned with the welfare of such child or relative, or (b) directly to a person or entity furnishing food, living accommodations, or other goods, services, or items to or for such child, relative, or other person, or (c) both such individual and such person or entity.

(2) No such payments shall be made unless all of the following conditions are met: (a) The department has determined that the relative of such child with respect to whom such payments are made has such inability to manage funds that making payments to him or her would be contrary to the welfare of the child and that it is therefor necessary to provide such aid with respect to such child and relative through payments described above to another interested individual, (b) the department has made arrangements for undertaking and continuing special efforts to develop greater ability on the part of the relative to manage funds in such a manner as to protect the welfare of the family, and (c) the department has approved a plan that provides for a periodic review to ascertain whether conditions justifying such payments still exist, with provision for termination of such payments if such conditions no longer exist and for judicial appointment of a guardian or conservator if it appears that the need for such special payments is continuing or is likely to continue beyond a period specified by the department.

Source:Laws 1969, c. 553, § 1, p. 2242; Laws 1982, LB 522, § 18; Laws 1996, LB 1044, § 173; Laws 2007, LB296, § 122.

43-530. Repealed. Laws 1982, LB 522, § 46.

43-531. Repealed. Laws 1991, LB 836, § 36.

43-532. Family policy; declaration; legislative findings.

(1) The Legislature finds and declares that children develop their unique potential in relation to a caring social unit, usually the family, and other nurturing environments, especially the schools and the community. The Legislature further finds that the state shall declare a family policy to guide the actions of state government in dealing with problems and crises involving children and families.

(2) When children and families require assistance from a department, agency, institution, committee, or commission of state government, the health and safety of the child is the paramount concern and reasonable efforts shall be made to provide such assistance in the least intrusive and least restrictive method consistent with the needs of the child and to deliver such assistance as close to the home community of the child or family requiring assistance as possible. The policy set forth in this subsection shall be (a) interpreted in conjunction with all relevant laws, rules, and regulations of the state and shall apply to all children and families who have need of services or who, by their circumstances or actions, have violated the laws, rules, or regulations of the state and are found to be in need of treatment or rehabilitation and (b) implemented through the cooperative efforts of state, county, and municipal governments, legislative, judicial, and executive branches of government, and other public and private resources.

(3) The family policy objectives prescribed in this section and section 43-533 shall not be construed to mean that a child shall be left in the home when it is shown that continued residence in the home places the child at risk and does not make the health and safety of the child of paramount concern.

Source:Laws 1987, LB 637, § 1; Laws 1989, LB 330, § 14; Laws 1998, LB 1041, § 33; Laws 2016, LB746, § 17.

Annotations

State policy is to assist juveniles in the least restrictive method consistent with their needs. In re Interest of Skylar E., 20 Neb. App. 725, 831 N.W.2d 358 (2013).

43-533. Family policy; guiding principles.

The following principles shall guide the actions of state government and departments, agencies, institutions, committees, courts, and commissions which become involved with families and children in need of assistance or services:

(1) Prevention, early identification of problems, and early intervention shall be guiding philosophies when the state or a department, agency, institution, committee, court, or commission plans or implements services for families or children when such services are in the best interests of the child;

(2) When families or children request assistance, state and local government resources shall be utilized to complement community efforts to help meet the needs of such families or the needs and the safety and best interests of such children. The state shall encourage community involvement in the provision of services to families and children, including as an integral part, local government and public and private group participation, in order to encourage and provide innovative strategies in the development of services for families and children;

(3) To maximize resources the state shall develop methods to coordinate services and resources for families and children. Every child-serving department, agency, institution, committee, court, or commission shall recognize that the jurisdiction of such department, agency, institution, committee, court, or commission in serving multiple-need children is not mutually exclusive;

(4) When children are removed from their home, permanency planning shall be the guiding philosophy. It shall be the policy of the state (a) to make reasonable efforts to reunite the child with his or her family in a timeframe appropriate to the age and developmental needs of the child so long as the best interests of the child, the health and safety of the child being of paramount concern, and the needs of the child have been given primary consideration in making a determination whether or not reunification is possible, (b) when a child cannot remain with parents, to give preference to relatives as a placement resource, and (c) to minimize the number of placement changes for children in out-of-home care so long as the needs, health, safety, and best interests of the child in care are considered; and

(5) When families cannot be reunited and when active parental involvement is absent, adoption shall be aggressively pursued. Absent the possibility of adoption other permanent settings shall be pursued. In either situation, the health, safety, and best interests of the child shall be the overriding concern. Within that context, preference shall be given to relatives for the permanent placement of the child.

Source:Laws 1987, LB 637, § 2; Laws 1995, LB 739, § 1; Laws 1996, LB 1001, § 3; Laws 1998, LB 1041, § 34.

Annotations

While the beneficial permanency of adoption is an important consideration that must be weighed in a best interests analysis under an adoption petition, subsection (5) of this section does not set forth a legal presumption controlling a best interests analysis, nor does it limit the factors a trial court may consider in deciding whether granting a petition for adoption is in the child's best interests. In re Adoption of Faith F., 313 Neb. 491, 984 N.W.2d 640 (2023).

43-534. Repealed. Laws 2016, LB746, § 30.

43-535. Families; training and treatment programs; legislative findings.

The Legislature hereby finds and declares that the family is the backbone of Nebraska and it is in the best interests of Nebraska to solidify, preserve, strengthen, and maintain the family unit. Often when a family member is afflicted with substance abuse or mental health problems all family members are affected and the family unit itself becomes fragmented and begins to deteriorate. It is the intent of the Legislature, through the appropriations prescribed in Laws 1988, LB 846, to use a portion of the funds to implement programs to train qualified personnel and to establish creative programs in the areas of family-centered counseling and the prevention and treatment of substance abuse or mental health problems within such families consistent with the findings and principles of sections 43-532 and 43-533. The personnel training and treatment programs shall be designed to aid each family member and the family unit by using counseling and any other necessary creative treatment programs which are the least intrusive and least restrictive on the family unit yet serve to repair and strengthen such unit.

Source:Laws 1988, LB 846, § 1; Laws 2016, LB746, § 18.

Cross References

Nebraska Strengthening Families Act, see section 43-4701.

43-536. Child care reimbursement; assessment; adjustment of rate; participation in quality rating and improvement system; effect.

In determining the rate of reimbursement for child care, the Department of Health and Human Services shall assess the market rates and costs for provision of services of the child care providers in the state, utilizing an approved methodology in accordance with 45 C.F.R. 98.45, as such section existed on January 1, 2024. The department shall adjust the reimbursement rate for child care every odd-numbered year at a rate not less than the seventy-fifth percentile of the current market rate, except that (1) nationally accredited child care providers may be reimbursed at higher rates and (2) an applicable child care or early childhood education program, as defined in section 71-1954, that is participating in the quality rating and improvement system and has received a rating of step three or higher under the Step Up to Quality Child Care Act may be reimbursed at higher rates based upon the program's quality scale rating under the quality rating and improvement system.

Source:Laws 1995, LB 455, § 20; Laws 1996, LB 1044, § 174; Laws 1997, LB 307, § 69; Laws 1998, LB 1073, § 28; Laws 2003, LB 414, § 1; Laws 2007, LB296, § 123; Laws 2011, LB464, § 1; Laws 2013, LB507, § 14; Laws 2017, LB335, § 1; Laws 2024, LB904, § 1.
Effective Date: July 19, 2024

Cross References

Step Up to Quality Child Care Act, see section 71-1952.

43-601. Repealed. Laws 1987, LB 367, § 76.

43-602. Repealed. Laws 1987, LB 367, § 76.

43-603. Repealed. Laws 1959, c. 419, § 13.

43-604. Repealed. Laws 1987, LB 367, § 76.

43-605. Transferred to section 79-1137.

43-605.01. Transferred to section 79-1138.

43-605.02. Transferred to section 79-1139.

43-605.03. Transferred to section 79-3319.

43-606. Transferred to section 79-3336.

43-607. Transferred to section 79-1129.

43-607.01. Repealed. Laws 1987, LB 367, § 76.

43-607.02. Transferred to section 79-1130.

43-608. Repealed. Laws 1987, LB 367, § 76.

43-609. Repealed. Laws 1977, LB 443, § 4.

43-610. Repealed. Laws 1973, LB 403, § 31.

43-610.01. Repealed. Laws 1987, LB 367, § 76.

43-611. Transferred to section 79-1144.

43-611.01. Transferred to section 79-1146.

43-612. Repealed. Laws 1973, LB 403, § 31.

43-613. Repealed. Laws 1973, LB 403, § 31.

43-613.01. Repealed. Laws 1973, LB 403, § 31.

43-614. Repealed. Laws 1973, LB 403, § 31.

43-615. Repealed. Laws 1973, LB 403, § 31.

43-615.01. Repealed. Laws 1973, LB 403, § 31.

43-616. Repealed. Laws 1972, LB 690, § 16.

43-616.01. Repealed. Laws 1976, LB 761, § 19.

43-616.02. Repealed. Laws 1986, LB 1177, § 66.

43-616.03. Repealed. Laws 1987, LB 367, § 76.

43-616.04. Repealed. Laws 1974, LB 92, § 4.

43-617. Transferred to section 79-1148.

43-618. Transferred to section 79-1149.

43-619. Transferred to section 79-1150.

43-620. Repealed. Laws 1987, LB 367, § 76.

43-621. Repealed. Laws 1987, LB 367, § 76.

43-622. Repealed. Laws 1987, LB 367, § 76.

43-623. Repealed. Laws 1987, LB 367, § 76.

43-624. Repealed. Laws 1987, LB 367, § 76.

43-625. Transferred to section 79-1154.

43-626. Transferred to section 79-1152.

43-626.01. Transferred to section 79-1153.

43-627. Repealed. Laws 1978, LB 871, § 32.

43-627.01. Repealed. Laws 1987, LB 367, § 76.

43-628. Repealed. Laws 1973, LB 403, § 31.

43-629. Repealed. Laws 1987, LB 367, § 76.

43-630. Repealed. Laws 1987, LB 367, § 76.

43-631. Repealed. Laws 1987, LB 367, § 76.

43-632. Repealed. Laws 1987, LB 367, § 76.

43-633. Transferred to section 20-126.

43-634. Transferred to section 20-127.

43-635. Transferred to section 20-128.

43-636. Transferred to section 20-129.

43-637. Transferred to section 20-130.

43-638. Transferred to section 20-131.

43-639. Repealed. Laws 1973, LB 102, § 5.

43-640. Repealed. Laws 1987, LB 367, § 76.

43-641. Transferred to section 79-1127.

43-642. Transferred to section 79-1128.

43-643. Transferred to section 79-1155.

43-644. Repealed. Laws 1982, LB 651, § 3.

43-645. Repealed. Laws 1987, LB 367, § 76.

43-646. Transferred to section 79-1126.

43-646.01. Transferred to section 79-1131.

43-646.02. Transferred to section 79-1132.

43-646.03. Transferred to section 79-1133.

43-646.04. Repealed. Laws 1987, LB 367, § 76.

43-646.05. Repealed. Laws 1987, LB 367, § 76.

43-646.06. Transferred to section 79-1134.

43-646.07. Repealed. Laws 1987, LB 367, § 76.

43-646.08. Transferred to section 79-1135.

43-646.09. Transferred to section 79-1136.

43-646.10. Repealed. Laws 1987, LB 367, § 76.

43-647. Transferred to section 79-1140.

43-647.01. Transferred to section 79-1141.

43-648. Transferred to section 79-1142.

43-649. Transferred to section 79-1156.

43-650. Transferred to section 79-1157.

43-651. Transferred to section 79-1158.

43-651.01. Repealed. Laws 1978, LB 871, § 32.

43-651.02. Repealed. Laws 1978, LB 871, § 32.

43-651.03. Repealed. Laws 1978, LB 871, § 32.

43-652. Repealed. Laws 1978, LB 871, § 32.

43-652.01. Repealed. Laws 1978, LB 871, § 32.

43-652.02. Repealed. Laws 1978, LB 871, § 32.

43-652.03. Repealed. Laws 1978, LB 871, § 32.

43-653. Transferred to section 79-1159.

43-654. Repealed. Laws 1986, LB 904, § 1.

43-654.01. Repealed. Laws 1986, LB 904, § 1.

43-654.02. Repealed. Laws 1986, LB 904, § 1.

43-654.03. Repealed. Laws 1986, LB 904, § 1.

43-655. Repealed. Laws 1980, LB 773, § 8.

43-655.01. Repealed. Laws 1986, LB 904, § 1.

43-656. Repealed. Laws 1986, LB 904, § 1.

43-657. Repealed. Laws 1986, LB 904, § 1.

43-658. Repealed. Laws 1980, LB 773, § 8.

43-659. Repealed. Laws 1980, LB 773, § 8.

43-660. Transferred to section 79-1160.

43-661. Transferred to section 79-1162.

43-662. Transferred to section 79-1163.

43-662.01. Transferred to section 79-1164.

43-663. Repealed. Laws 1980, LB 855, § 4.

43-664. Transferred to section 79-1165.

43-665. Transferred to section 79-1166.

43-666. Transferred to section 79-1167.

43-667. Repealed. Laws 1987, LB 367, § 76.

43-668. Repealed. Laws 1987, LB 367, § 76.

43-669. Transferred to section 79-1168.

43-670. Transferred to section 79-1169.

43-671. Transferred to section 79-1170.

43-672. Transferred to section 79-1171.

43-673. Transferred to section 79-1172.

43-674. Transferred to section 79-1173.

43-675. Transferred to section 79-1174.

43-676. Transferred to section 79-1175.

43-677. Transferred to section 79-1176.

43-678. Repealed. Laws 1987, LB 367, § 76.

43-679. Transferred to section 79-1177.

43-680. Transferred to section 79-1178.

43-701. License; when required; issuance; revocation.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, no person, other than a parent, shall (1) place, (2) assist in placing, (3) advertise a child for placement, or (4) give the care and custody of any child to any person or association for adoption or otherwise, except for temporary or casual care, unless such person shall be duly licensed by the Department of Health and Human Services under such rules and regulations as the department shall prescribe. The department may grant or revoke such a license and make all needful rules regarding the issuance or revocation thereof.

Source:Laws 1919, c. 190, tit. VI, art. II, div. XI, § 1, p. 789; C.S.1922, § 8265; C.S.1929, § 71-2601; R.S.1943, § 71-801; Laws 1945, c. 170, § 1, p. 545; Laws 1961, c. 204, § 5, p. 613; Laws 1985, LB 255, § 35; Laws 1996, LB 1044, § 175; Laws 1997, LB 307, § 70.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-702. Custodian of child; records required.

Persons or courts charged with the care of dependent and delinquent children who place out or give the care and custody of any child to any person or association shall keep and preserve such records as may be prescribed by the Department of Health and Human Services. The records shall be reported to the department on the first day of each month and shall include the (1) full name and actual or apparent age of such child, (2) names and residence of the child's parents, so far as known, and (3) name and residence of the person or association with whom such child is placed. If such person or court subsequently removes the child from the custody of the person or association with whom the child was placed, the fact of the removal and disposition of the child shall be entered upon such record.

Source:Laws 1919, c. 190, tit. VI, art. II, div. XI, § 2, p. 789; C.S.1922, § 8266; C.S.1929, § 71-2602; R.S.1943, § 71-802; Laws 1945, c. 170, § 2, p. 545; Laws 1961, c. 204, § 6, p. 614; Laws 1989, LB 22, § 5; Laws 1996, LB 1044, § 176; Laws 1997, LB 307, § 71.

43-703. Repealed. Laws 1989, LB 22, § 8.

43-704. Repealed. Laws 1980, LB 951, § 1.

43-705. Visitation; Department of Health and Human Services; power.

The Department of Health and Human Services, or such person as it may authorize, may visit any child so placed, who has not been legally adopted, with a view of ascertaining whether such child is being properly cared for and living under moral surroundings.

Source:Laws 1919, c. 190, tit. VI, art. II, div. XI, § 5, p. 790; C.S.1922, § 8269; C.S.1929, § 71-2605; R.S.1943, § 71-805; Laws 1945, c. 170, § 5, p. 546; Laws 1961, c. 204, § 9, p. 615; Laws 1996, LB 1044, § 177; Laws 1997, LB 307, § 72.

43-706. Abuse or neglect by custodian; filing of complaint.

Whenever the Department of Health and Human Services has reason to believe that any person having the care or custody of a child placed out, and not legally adopted, is an improper person for such care or custody, or subjects such child to cruel treatment, or neglect, or immoral surroundings, it shall cause a complaint to be filed in the proper juvenile court.

Source:Laws 1919, c. 190, tit. VI, art. II, div. XI, § 6, p. 790; C.S.1922, § 8270; C.S.1929, § 71-2606; R.S.1943, § 71-806; Laws 1945, c. 170, § 6, p. 546; Laws 1961, c. 204, § 10, p. 615; Laws 1996, LB 1044, § 178.

43-707. Protection of children; Department of Health and Human Services; powers and duties.

The Department of Health and Human Services shall have the power and it shall be its duty:

(1) To promote the enforcement of laws for the protection and welfare of children born out of wedlock, mentally and physically handicapped children, and dependent, neglected, and delinquent children, except laws the administration of which is expressly vested in some other state department or division, and to take the initiative in all matters involving such children when adequate provision therefor has not already been made;

(2) To visit and inspect public and private institutions, agencies, societies, or persons caring for, receiving, placing out, or handling children;

(3) To prescribe the form of reports required by law to be made to the department by public officers, agencies, and institutions;

(4) To exercise general supervision over the administration and enforcement of all laws governing the placing out and adoption of children;

(5) To advise with judges and probation officers of courts of domestic relations and juvenile courts of the several counties, with a view to encouraging, standardizing, and coordinating the work of such courts and officers throughout the state; and

(6) To regulate the issuance of certificates or licenses to such institutions, agencies, societies, or persons and to revoke such licenses or certificates for good cause shown. If a license is refused or revoked, the refusal or revocation may be appealed, and the appeal shall be in accordance with the Administrative Procedure Act.

Source:Laws 1933, c. 123, § 2, p. 495; C.S.Supp.,1941, § 81-5715; R.S.1943, § 81-617; Laws 1945, c. 170, § 7, p. 546; Laws 1961, c. 204, § 11, p. 615; Laws 1988, LB 352, § 34; Laws 1989, LB 22, § 6; Laws 1996, LB 1044, § 179; Laws 1997, LB 307, § 73.

Cross References

Administrative Procedure Act, see section 84-920.

Associations receiving juveniles under the Nebraska Juvenile Code, supervision by Department of Health and Human Services, see section 43-296.

43-708. Parent, guardian, or custodian; powers.

No official, agent, or representative of the Department of Health and Human Services shall, by virtue of sections 43-701 to 43-709, have any right to enter any home over the objection of the occupants thereof or to take charge of any child over the objection of the parents, or either of them, or of the person standing in loco parentis or having the custody of such child. Nothing in sections 43-701 to 43-709 shall be construed as limiting the power of a parent or guardian to determine what treatment or correction shall be provided for a child or the agency or agencies to be employed for such purposes.

Source:Laws 1933, c. 123, § 4, p. 496; C.S.Supp.,1941, § 81-5717; R.S.1943, § 81-618; Laws 1945, c. 170, § 8, p. 547; Laws 1961, c. 204, § 12, p. 616; Laws 1996, LB 1044, § 180; Laws 1997, LB 307, § 74.

Annotations

This section does not provide an agency standing in loco parentis with an affirmative right to inflict corporal punishment upon children residing in licensed child-caring facilities; it simply limits the Department of Social Services' power to forcibly remove a child from the home of his parents or guardian, or one standing in loco parentis prior to state intervention in the parent-child relationship. Cornhusker Christian Ch. Home v. Dept. of Soc. Servs., 227 Neb. 94, 416 N.W.2d 551 (1987).

43-709. Violation; penalty.

Any person or agency who or which shall violate any of the provisions of sections 43-701 to 43-709 shall be guilty of a Class III misdemeanor, and this penalty shall apply to officers and employees of agencies.

Source:Laws 1919, c. 190, tit. VI, art. II, div. XI, § 7, p. 790; C.S.1922, § 8271; C.S.1929, § 71-2607; R.S.1943, § 71-807; Laws 1945, c. 170, § 9, p. 547; Laws 1977, LB 40, § 229.

43-801. Destruction of property; infliction of personal injury; limitation.

The parents shall be jointly and severally liable for the willful and intentional infliction of personal injury to any person or destruction of real and personal property occasioned by their minor or unemancipated children residing with them, or placed by them under the care of other persons; Provided, that in the event of personal injuries willfully and intentionally inflicted by such child or children, damages shall be recoverable only to the extent of hospital and medical expenses incurred but not to exceed the sum of one thousand dollars for each occurrence.

Source:Laws 1951, c. 126, § 1, p. 545; Laws 1969, c. 347, § 1, p. 1217.

Annotations

This section does not impose a fine or penalty within the meaning of U.S. Const. amend. VIII, Neb. Const. art. I, sec. 9, and Neb. Const. art. VII, sec. 5. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

This section does not violate either the prohibition against special legislation contained in Neb. Const. art. III, sec. 18, or the equal protection clause of U.S. Const. amend. XIV on the ground that the liability of parents of children who intentionally inflict personal injury is limited and the liability of parents whose children intentionally inflict property damage is not. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

This section may not be characterized as imposing punitive damages in contravention of Neb. Const. art. VII, sec. 5, as the damages for which parents may be held liable under this statute are "measured against," and in fact are limited by, the "actual injury" caused by their errant children. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

This section violates neither the due process clause contained in Neb. Const. art. I, sec. 3, nor that contained in U.S. Const. amend. XIV on the ground that it imposes vicarious liability. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

Action of trial court in dismissing action as to parents for tort of child upheld. Neill v. McGinn, 175 Neb. 369, 122 N.W.2d 65 (1963).

Four-year-old child is legally incapable of committing offense of willful and intentional destruction of property. Connors v. Pantano, 165 Neb. 515, 86 N.W.2d 367 (1957).

43-901. Repealed. Laws 1996, LB 1155, § 121.

43-901.01. Repealed. Laws 1985, LB 26, § 1.

43-902. Repealed. Laws 1996, LB 1155, § 121.

43-903. Court acting pursuant to Nebraska Juvenile Code; disposition of children.

Any court acting pursuant to the Nebraska Juvenile Code shall commit to the care of the Department of Health and Human Services or any regularly organized and incorporated society or institution, for the purpose of caring for and placing in good family homes, all children, except those already committed to the care of responsible persons or institutions, who have been decreed to be children as described in subdivision (3)(a) of section 43-247 and who for that reason must be removed from the care of their parents or legal guardians.

Source:Laws 1911, c. 62, § 9, p. 275; R.S.1913, § 7233; C.S.1922, § 6890; C.S.1929, § 83-508; R.S.1943, § 83-241; Laws 1988, LB 790, § 29; Laws 1996, LB 1044, § 183.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

43-904. Repealed. Laws 1996, LB 1155, § 121.

43-905. Legal custody; care; placement; duties of department; contracts; payment for maintenance.

(1) The Department of Health and Human Services shall have legal custody of all children committed to it. The department shall afford temporary care and shall use special diligence to provide suitable homes for such children. The department shall make reasonable efforts to accomplish joint-sibling placement or sibling visitation or ongoing interaction between siblings as provided in section 43-1311.02. The department is authorized to place such children in suitable families for adoption, foster care, or guardianship or, in the discretion of the department, on a written contract.

(2) The contract shall provide (a) for the children's education in the public schools or otherwise, (b) for teaching them some useful occupation, and (c) for kind and proper treatment as members of the family in which they are placed.

(3) Whenever any child who has been committed to the department becomes self-supporting, the department shall declare that fact and the legal custody and care of the department shall cease. Thereafter the child shall be entitled to his or her own earnings. Legal custody and care of and services by the department shall never extend beyond the age of majority, except that (a) services by the department to a child shall continue until the child reaches the age of twenty-one if the child is in the bridge to independence program as provided in the Young Adult Bridge to Independence Act and (b) coverage for health care and related services under medical assistance in accordance with section 68-911 shall be extended as provided under the federal Patient Protection and Affordable Care Act, 42 U.S.C. 1396a(a)(10)(A)(i)(IX), as such act and section existed on January 1, 2013, for medicaid coverage for individuals under twenty-six years of age as allowed pursuant to such act.

(4) Whenever the parents of any ward, whose parental rights have not been terminated, have become able to support and educate their child, the department shall restore the child to his or her parents if the home of such parents would be a suitable home. The legal custody and care of the department shall then cease.

(5) Whenever permanent free homes for the children cannot be obtained, the department may provide subsidies to adoptive and guardianship families subject to a hearing and court approval. The department may also provide and pay for the maintenance of the children in foster care, in boarding homes, or in institutions for care of children.

Source:Laws 1911, c. 62, § 5, p. 274; R.S.1913, § 7229; C.S.1922, § 6886; C.S.1929, § 83-504; Laws 1937, c. 202, § 1, p. 826; C.S.Supp.,1941, § 83-504; R.S.1943, § 83-243; Laws 1945, c. 246, § 1, p. 779; Laws 1951, c. 325, § 1, p. 1097; Laws 1953, c. 344, § 1, p. 1118; Laws 1957, c. 387, § 1, p. 1345; Laws 1959, c. 443, § 1, p. 1491; Laws 1961, c. 415, § 32, p. 1261; Laws 1965, c. 245, § 1, p. 695; Laws 1967, c. 248, § 4, p. 657; Laws 1969, c. 349, § 1, p. 1219; Laws 1977, LB 312, § 5; Laws 1978, LB 732, § 1; Laws 1992, LB 169, § 1; Laws 1996, LB 1044, § 185; Laws 1996, LB 1155, § 10; Laws 1998, LB 1073, § 29; Laws 2007, LB296, § 124; Laws 2011, LB177, § 2; Laws 2013, LB216, § 16; Laws 2013, LB269, § 2; Laws 2014, LB853, § 24; Laws 2014, LB908, § 6; Laws 2015, LB243, § 12.

Cross References

Foster Parent Liability and Property Damage Fund, see section 43-1320.

Young Adult Bridge to Independence Act, see section 43-4501.

43-906. Adoption; consent.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, the Department of Health and Human Services, or its duly authorized agent, may consent to the adoption of children committed to it upon the order of a juvenile court if the parental rights of the parents or of the mother of a child born out of wedlock have been terminated and if no father of a child born out of wedlock has timely asserted his paternity rights under section 43-104.02, or upon the relinquishment to such department by their parents or the mother and, if required under sections 43-104.08 to 43-104.24, the father of a child born out of wedlock. The parental rights of parents of a child born out of wedlock shall be determined pursuant to sections 43-104.05 and 43-104.08 to 43-104.24.

Source:Laws 1911, c. 62, § 7, p. 275; R.S.1913, § 7231; C.S.1922, § 6888; C.S.1929, § 83-506; R.S.1943, § 83-245; Laws 1947, c. 333, § 2, p. 1052; Laws 1955, c. 344, § 2, p. 1061; Laws 1967, c. 248, § 5, p. 658; Laws 1985, LB 255, § 36; Laws 1995, LB 712, § 27; Laws 1996, LB 1044, § 186; Laws 2007, LB247, § 21; Laws 2022, LB741, § 32.

Cross References

Adoption, substitute consents, see sections 43-105 and 43-293.

Nebraska Indian Child Welfare Act, see section 43-1501.

43-907. Assets; custody; records; expenditures; investments; social security benefits; department; duties.

(1) Unless a guardian shall have been appointed by a court of competent jurisdiction, the Department of Health and Human Services shall take custody of and exercise general control over assets owned by children under the charge of the department. Children owning assets shall at all times pay for personal items. Assets over and above a maximum of one thousand dollars and current income shall be available for reimbursement to the state for the cost of care. Assets may be deposited in a checking account, invested in United States bonds, or deposited in a savings account insured by the United States Government. All income received from the investment or deposit of assets shall be credited to the individual child whose assets were invested or deposited. The department shall make and maintain detailed records showing all receipts, investments, and expenditures of assets owned by children under the charge of the department.

(2) When the Department of Health and Human Services serves as representative payee for a child beneficiary of social security benefits, the department shall provide:

(a) Notice to the child beneficiary, in an age-appropriate manner, and the child's guardian ad litem, that the department is acting as the child's representative payee for the purposes of receiving social security benefits, within thirty days after receiving the first social security benefit payment on behalf of the child;

(b) Notice to the juvenile court, at every review hearing regarding the child beneficiary after January 1, 2023, regarding the department's receipt and conservation of the child's social security benefits, that shall include:

(i) The total amount of social security benefit funds the department has received on behalf of the child beneficiary as of the review hearing; and

(ii) The total amount of social security benefit funds received on behalf of the child beneficiary that are currently conserved or unspent as of the review hearing; and

(c) All accounting records regarding the department's receipt, use, and conservation of the child's social security benefits, to the child beneficiary, the child's guardian ad litem or attorney, or the child's parent upon:

(i) Request from the child beneficiary, the child's guardian ad litem or attorney, or the child's parent; and

(ii) Termination of the department's role as the child beneficiary's representative payee.

(3) On or before October 1, 2023, the Department of Health and Human Services shall adopt and promulgate rules and regulations to carry out subsection (2) of this section consistent with federal requirements regarding representative payees for social security beneficiaries.

Source:Laws 1963, c. 245, § 1, p. 739; Laws 1976, LB 545, § 1; Laws 1977, LB 312, § 6; Laws 1982, LB 828, § 1; Laws 1996, LB 1044, § 187; Laws 2007, LB296, § 125; Laws 2022, LB1173, § 8.

Annotations

The plain meaning of this section is that children in the custody of the Department of Social Services have the right to their personal assets and income up to $1,000; the State may apply amounts in excess of $1,000 to the cost of a child's care. In re Interest of Jaycox, 250 Neb. 697, 551 N.W.2d 9 (1996).

43-908. Child reaching age of majority; disposition of assets.

An attempt shall be made by the Department of Health and Human Services to locate children who arrive at the age of majority for the purpose of delivering and transferring to any such child such funds or property as he or she may own. In the event that such child cannot be located within five years after the child arrives at the age of majority, any funds or assets owned by him or her shall be transferred to the state treasury of the State of Nebraska.

Source:Laws 1963, c. 245, § 2, p. 740; Laws 1977, LB 312, § 7; Laws 1996, LB 1044, § 188; Laws 2007, LB296, § 126.

43-909. Repealed. Laws 1996, LB 1155, § 121.

43-910. Repealed. Laws 1996, LB 1155, § 121.

43-911. Repealed. Laws 1984, LB 638, § 1.

43-912. Repealed. Laws 1985, LB 13, § 1.

43-913. Repealed. Laws 1996, LB 1155, § 121.

43-1001. Repealed. Laws 2009, LB 237, § 5.

43-1002. Repealed. Laws 2009, LB 237, § 5.

43-1003. Repealed. Laws 2009, LB 237, § 5.

43-1004. Repealed. Laws 2009, LB 237, § 5.

43-1005. Expense of returning juvenile to state; how paid.

The expense of returning juveniles to this state pursuant to the Interstate Compact for Juveniles shall be paid as follows:

(1) In the case of a runaway, the court making the requisition shall inquire summarily regarding the financial ability of the petitioner to bear the expense and if it finds he or she is able to do so shall order that he or she pay all such expenses; otherwise the court shall arrange for the transportation at the expense of the county and order that the county reimburse the person, if any, who returns the juvenile for his or her actual and necessary expenses; and the court may order that the petitioner reimburse the county for so much of said expense as the court finds he or she is able to pay. If the petitioner fails, without good cause, or refuses to pay such sum, he or she may be proceeded against for contempt.

(2) In the case of an escapee or absconder, if the juvenile is in the legal custody of the Department of Health and Human Services it shall bear the expense of his or her return; otherwise the appropriate court shall, on petition of the person entitled to his or her custody or charged with his or her supervision, arrange for the transportation at the expense of the county and order that the county reimburse the person, if any, who returns the juvenile, for his or her actual and necessary expenses. In this subdivision appropriate court means the juvenile court which adjudged the juvenile to be delinquent or, if the juvenile is under supervision for another state, then the juvenile court of the county of the juvenile's residence during such supervision.

(3) In the case of a voluntary return of a runaway without requisition, the person entitled to his or her legal custody shall pay the expense of transportation and the actual and necessary expenses of the person, if any, who returns such juvenile; but if he or she is financially unable to pay all the expenses he or she may petition the juvenile court of the county of the petitioner's residence for an order arranging for the transportation as provided in subdivision (1) of this section. The court shall inquire summarily into the financial ability of the petitioner, and, if it finds he or she is unable to bear any or all of the expense, the court shall arrange for such transportation at the expense of the county and shall order the county to reimburse the person, if any, who returns the juvenile, for his or her actual and necessary expenses. The court may order that the petitioner reimburse the county for so much of said expense as the court finds he or she is able to pay. If the petitioner fails, without good cause, or refuses to pay such sum, he or she may be proceeded against for contempt.

Source:Laws 1963, c. 248, § 5, p. 756; Laws 1996, LB 1044, § 192; Laws 2009, LB237, § 2.

Cross References

Interstate Compact for Juveniles, see section 43-1011.

43-1006. Repealed. Laws 2009, LB 237, § 5.

43-1007. Repealed. Laws 2009, LB 237, § 5.

43-1008. Repealed. Laws 2009, LB 237, § 5.

43-1009. Repealed. Laws 2009, LB 237, § 5.

43-1010. Repealed. Laws 2009, LB 237, § 5.

43-1011. Interstate Compact for Juveniles.

ARTICLE I

PURPOSE

The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents and status offenders who are on probation or parole and who have absconded, escaped or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in doing so have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.

It is the purpose of this compact, through means of joint and cooperative action among the compacting states to: (A) ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state; (B) ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected; (C) return juveniles who have run away, absconded or escaped from supervision or control or have been accused of an offense to the state requesting their return; (D) make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services; (E) provide for the effective tracking and supervision of juveniles; (F) equitably allocate the costs, benefits and obligations of the compacting states; (G) establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders; (H) insure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; (I) establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact; (J) establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials; and regular reporting of Compact activities to heads of state executive, judicial, and legislative branches and juvenile and criminal justice administrators; (K) monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance; (L) coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and (M) coordinate the implementation and operation of the compact with the Interstate Compact for the Placement of Children, the Interstate Compact for Adult Offender Supervision and other compacts affecting juveniles particularly in those cases where concurrent or overlapping supervision issues arise. It is the policy of the compacting states that the activities conducted by the Interstate Commission created herein are the formation of public policies and therefor are public business. Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact. The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.

ARTICLE II

DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

A. "Bylaws" means: those bylaws established by the Interstate Commission for its governance, or for directing or controlling its actions or conduct.

B. "Compact Administrator" means: the individual in each compacting state appointed pursuant to the terms of this compact, responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.

C. "Compacting State" means: any state which has enacted the enabling legislation for this compact.

D. "Commissioner" means: the voting representative of each compacting state appointed pursuant to Article III of this compact.

E. "Court" means: any court having jurisdiction over delinquent, neglected, or dependent children.

F. "Deputy Compact Administrator" means: the individual, if any, in each compacting state appointed to act on behalf of a Compact Administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission and policies adopted by the State Council under this compact.

G. "Interstate Commission" means: the Interstate Commission for Juveniles created by Article III of this compact.

H. "Juvenile" means: any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:

(1) Accused Delinquent — a person charged with an offense that, if committed by an adult, would be a criminal offense;

(2) Adjudicated Delinquent — a person found to have committed an offense that, if committed by an adult, would be a criminal offense;

(3) Accused Status Offender — a person charged with an offense that would not be a criminal offense if committed by an adult;

(4) Adjudicated Status Offender — a person found to have committed an offense that would not be a criminal offense if committed by an adult; and

(5) Nonoffender — a person in need of supervision who has not been accused or adjudicated a status offender or delinquent.

I. "Noncompacting state" means: any state which has not enacted the enabling legislation for this compact.

J. "Probation or Parole" means: any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.

K. "Rule" means: a written statement by the Interstate Commission promulgated pursuant to Article VI of this compact that is of general applicability, implements, interprets or prescribes a policy or provision of the Compact, or an organizational, procedural, or practice requirement of the Commission, and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.

L. "State" means: a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands.

ARTICLE III

INTERSTATE COMMISSION FOR JUVENILES

A. The compacting states hereby create the "Interstate Commission for Juveniles." The commission shall be a body corporate and joint agency of the compacting states. The commission shall have all the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.

B. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created hereunder. The commissioner shall be the compact administrator, deputy compact administrator or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.

C. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations. Such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims. All noncommissioner members of the Interstate Commission shall be ex officio (nonvoting) members. The Interstate Commission may provide in its bylaws for such additional ex officio (nonvoting) members, including members of other national organizations, in such numbers as shall be determined by the commission.

D. Each compacting state represented at any meeting of the commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.

E. The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.

F. The Interstate Commission shall establish an executive committee, which shall include commission officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee shall oversee the day-to-day activities of the administration of the compact managed by an executive director and Interstate Commission staff; administers enforcement and compliance with the provisions of the compact, its bylaws and rules, and performs such other duties as directed by the Interstate Commission or set forth in the bylaws.

G. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission. A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the state council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.

H. The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.

I. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the Rules or as otherwise provided in the Compact. The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:

1. Relate solely to the Interstate Commission's internal personnel practices and procedures;

2. Disclose matters specifically exempted from disclosure by statute;

3. Disclose trade secrets or commercial or financial information which is privileged or confidential;

4. Involve accusing any person of a crime, or formally censuring any person;

5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

6. Disclose investigative records compiled for law enforcement purposes;

7. Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf of or for the use of, the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;

8. Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or

9. Specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.

J. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.

K. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements. Such methods of data collection, exchange and reporting shall insofar as is reasonably possible conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

ARTICLE IV

POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The commission shall have the following powers and duties:

1. To provide for dispute resolution among compacting states.

2. To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.

3. To oversee, supervise and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the Interstate Commission.

4. To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process.

5. To establish and maintain offices which shall be located within one or more of the compacting states.

6. To purchase and maintain insurance and bonds.

7. To borrow, accept, hire or contract for services of personnel.

8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.

9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel.

10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it.

11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed.

12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed.

13. To establish a budget and make expenditures and levy dues as provided in Article VIII of this compact.

14. To sue and be sued.

15. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.

16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.

17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.

18. To coordinate education, training and public awareness regarding the interstate movement of juveniles for officials involved in such activity.

19. To establish uniform standards of the reporting, collecting and exchanging of data.

20. The Interstate Commission shall maintain its corporate books and records in accordance with the bylaws.

ARTICLE V

ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

Section A. Bylaws

1. The Interstate Commission shall, by a majority of the members present and voting, within twelve months after the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:

a. Establishing the fiscal year of the Interstate Commission;

b. Establishing an executive committee and such other committees as may be necessary;

c. Provide for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;

d. Providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;

e. Establishing the titles and responsibilities of the officers of the Interstate Commission;

f. Providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the Compact after the payment and/or reserving of all of its debts and obligations;

g. Providing "startup" rules for initial administration of the compact; and

h. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.

Section B. Officers and Staff

1. The Interstate Commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice-chairperson, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson's absence or disability, the vice-chairperson shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.

2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The executive director shall serve as secretary to the Interstate Commission, but shall not be a Member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.

Section C. Qualified Immunity, Defense and Indemnification

1. The Commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

2. The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

3. The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the Attorney General of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of Interstate Commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

4. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

ARTICLE VI

RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

A. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.

B. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1 (2000), or such other administrative procedures act, as the Interstate Commission deems appropriate consistent with due process requirements under the U.S. Constitution as now or hereafter interpreted by the U.S. Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Commission.

C. When promulgating a rule, the Interstate Commission shall, at a minimum:

1. publish the proposed rule's entire text stating the reason(s) for that proposed rule;

2. allow and invite any and all persons to submit written data, facts, opinions and arguments, which information shall be added to the record, and be made publicly available;

3. provide an opportunity for an informal hearing if petitioned by ten (10) or more persons; and

4. promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.

D. Allow, not later than sixty days after a rule is promulgated, any interested person to file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside. For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.

E. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.

F. The existing rules governing the operation of the Interstate Compact on Juveniles superceded by this compact shall be null and void twelve (12) months after the first meeting of the Interstate Commission created hereunder.

G. Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety (90) days after the effective date of the emergency rule.

ARTICLE VII

OVERSIGHT, ENFORCEMENT AND DISPUTE RESOLUTION BY THE INTERSTATE COMMISSION

Section A. Oversight

1. The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.

2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules. All courts shall take judicial notice of the compact and the rules. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.

Section B. Dispute Resolution

1. The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.

2. The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and noncompacting states. The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

3. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in Article XI of this compact.

ARTICLE VIII

FINANCE

A. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization and ongoing activities.

B. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.

C. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.

D. The Interstate Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

ARTICLE IX

THE STATE COUNCIL

Each member state shall create a State Council for Interstate Juvenile Supervision. While each state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council will advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including but not limited to, development of policy concerning operations and procedures of the compact within that state.

ARTICLE X

COMPACTING STATES, EFFECTIVE DATE AND AMENDMENT

A. Any state, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands as defined in Article II of this compact is eligible to become a compacting state.

B. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the 35th jurisdiction. Thereafter it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state. The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.

C. The Interstate Commission may propose amendments to the compact for enactment by the compacting states. No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

ARTICLE XI

WITHDRAWAL, DEFAULT, TERMINATION AND JUDICIAL ENFORCEMENT

Section A. Withdrawal

1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.

2. The effective date of withdrawal is the effective date of the repeal.

3. The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty days of its receipt thereof.

4. The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.

5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.

Section B. Technical Assistance, Fines, Suspension, Termination and Default

1. If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:

a. Remedial training and technical assistance as directed by the Interstate Commission;

b. Alternative Dispute Resolution;

c. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission; and

d. Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the Interstate Commission has therefor determined that the offending state is in default. Immediate notice of suspension shall be given by the Interstate Commission to the Governor, the Chief Justice or the Chief Judicial Officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the bylaws, or duly promulgated rules and any other grounds designated in commission bylaws and rules. The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of termination.

2. Within sixty days of the effective date of termination of a defaulting state, the Commission shall notify the Governor, the Chief Justice or Chief Judicial Officer, the Majority and Minority Leaders of the defaulting state's legislature, and the state council of such termination.

3. The defaulting state is responsible for all assessments, obligations and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.

4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.

5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.

Section C. Judicial Enforcement

The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact, its duly promulgated rules and bylaws, against any compacting state in default. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees.

Section D. Dissolution of Compact

1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state, which reduces membership in the compact to one compacting state.

2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XII

SEVERABILITY AND CONSTRUCTION

A. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

B. The provisions of this compact shall be liberally construed to effectuate its purposes.

ARTICLE XIII

BINDING EFFECT OF COMPACT AND OTHER LAWS

Section A. Other Laws

1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.

2. All compacting states' laws other than state Constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.

Section B. Binding Effect of the Compact

1. All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the compacting states.

2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.

3. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.

4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective and such obligations, duties, powers or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers or jurisdiction are delegated by law in effect at the time this compact becomes effective.

Source:Laws 2009, LB237, § 1.

Cross References

Interstate Compact for Adult Offender Supervision, see section 29-2639.

Interstate Compact for the Placement of Children, see section 43-1103.

43-1101. Repealed. Laws 2009, LB 237, § 5.

43-1102. Repealed. Laws 2009, LB 237, § 5.

43-1103. Interstate Compact for the Placement of Children.

ARTICLE I. PURPOSE

The purpose of this Interstate Compact for the Placement of Children is to:

A. Provide a process through which children subject to this compact are placed in safe and suitable homes in a timely manner.

B. Facilitate ongoing supervision of a placement, the delivery of services, and communication between the states.

C. Provide operating procedures that will ensure that children are placed in safe and suitable homes in a timely manner.

D. Provide for the promulgation and enforcement of administrative rules implementing the provisions of this compact and regulating the covered activities of the member states.

E. Provide for uniform data collection and information sharing between member states under this compact.

F. Promote coordination between this compact, the Interstate Compact for Juveniles, the Interstate Compact on Adoption and Medical Assistance and other compacts affecting the placement of and which provide services to children otherwise subject to this compact.

G. Provide for a state's continuing legal jurisdiction and responsibility for placement and care of a child that it would have had if the placement were intrastate.

H. Provide for the promulgation of guidelines, in collaboration with Indian tribes, for interstate cases involving Indian children as is or may be permitted by federal law.

ARTICLE II. DEFINITIONS

As used in this compact,

A. "Approved placement" means the public child-placing agency in the receiving state has determined that the placement is both safe and suitable for the child.

B. "Assessment" means an evaluation of a prospective placement by a public child-placing agency in the receiving state to determine if the placement meets the individualized needs of the child, including, but not limited to, the child's safety and stability, health and well-being, and mental, emotional, and physical development. An assessment is only applicable to a placement by a public child-placing agency.

C. "Child" means an individual who has not attained the age of eighteen (18).

D. "Certification" means to attest, declare or swear to before a judge or notary public.

E. "Default" means the failure of a member state to perform the obligations or responsibilities imposed upon it by this compact, the bylaws or rules of the Interstate Commission.

F. "Home study" means an evaluation of a home environment conducted in accordance with the applicable requirements of the state in which the home is located, and documents the preparation and the suitability of the placement resource for placement of a child in accordance with the laws and requirements of the state in which the home is located.

G. "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaskan native village as defined in section 3(c) of the Alaska Native Claims Settlement Act, 43 U.S.C. 11 section 1602(c).

H. "Interstate Commission for the Placement of Children" means the commission that is created under Article VIII of this compact and which is generally referred to as the Interstate Commission.

I. "Jurisdiction" means the power and authority of a court to hear and decide matters.

J. "Legal Risk Placement" ("Legal Risk Adoption") means a placement made preliminary to an adoption where the prospective adoptive parents acknowledge in writing that a child can be ordered returned to the sending state or the birth mother's state of residence, if different from the sending state, and a final decree of adoption shall not be entered in any jurisdiction until all required consents are obtained or are dispensed with in accordance with applicable law.

K. "Member state" means a state that has enacted this compact.

L. "Noncustodial parent" means a person who, at the time of the commencement of court proceedings in the sending state, does not have sole legal custody of the child or has joint legal custody of a child, and who is not the subject of allegations or findings of child abuse or neglect.

M. "Nonmember state" means a state which has not enacted this compact.

N. "Notice of residential placement" means information regarding a placement into a residential facility provided to the receiving state including, but not limited to, the name, date, and place of birth of the child, the identity and address of the parent or legal guardian, evidence of authority to make the placement, and the name and address of the facility in which the child will be placed. Notice of residential placement shall also include information regarding a discharge and any unauthorized absence from the facility.

O. "Placement" means the act by a public or private child-placing agency intended to arrange for the care or custody of a child in another state.

P. "Private child-placing agency" means any private corporation, agency, foundation, institution, or charitable organization, or any private person or attorney that facilitates, causes, or is involved in the placement of a child from one state to another and that is not an instrumentality of the state or acting under color of state law.

Q. "Provisional placement" means a determination made by the public child-placing agency in the receiving state that the proposed placement is safe and suitable, and, to the extent allowable, the receiving state has temporarily waived its standards or requirements otherwise applicable to prospective foster or adoptive parents so as to not delay the placement. Completion of the receiving state requirements regarding training for prospective foster or adoptive parents shall not delay an otherwise safe and suitable placement.

R. "Public child-placing agency" means any government child welfare agency or child protection agency or a private entity under contract with such an agency, regardless of whether they act on behalf of a state, county, municipality or other governmental unit and which facilitates, causes, or is involved in the placement of a child from one state to another.

S. "Receiving state" means the state to which a child is sent, brought, or caused to be sent or brought.

T. "Relative" means someone who is related to the child as a parent, stepparent, sibling by half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin or a nonrelative with such significant ties to the child that they may be regarded as relatives as determined by the court in the sending state.

U. "Residential Facility" means a facility providing a level of care that is sufficient to substitute for parental responsibility or foster care and is beyond what is needed for assessment or treatment of an acute condition. For purposes of the compact, residential facilities do not include institutions primarily educational in character, hospitals, or other medical facilities.

V. "Rule" means a written directive, mandate, standard, or principle issued by the Interstate Commission promulgated pursuant to Article XI of this compact that is of general applicability and that implements, interprets, or prescribes a policy or provision of the compact. "Rule" has the force and effect of an administrative rule in a member state, and includes the amendment, repeal, or suspension of an existing rule.

W. "Sending state" means the state from which the placement of a child is initiated.

X. "Service member's permanent duty station" means the military installation where an active duty Armed Services member is currently assigned and is physically located under competent orders that do not specify the duty as temporary.

Y. "Service member's state of legal residence" means the state in which the active duty Armed Services member is considered a resident for tax and voting purposes.

Z. "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, and any other territory of the United States.

AA. "State court" means a judicial body of a state that is vested by law with responsibility for adjudicating cases involving abuse, neglect, deprivation, delinquency, or status offenses of individuals who have not attained the age of eighteen (18).

BB. "Supervision" means monitoring provided by the receiving state once a child has been placed in a receiving state pursuant to this compact.

ARTICLE III. APPLICABILITY

A. Except as otherwise provided in Article III, Section B, this compact shall apply to:

1. The interstate placement of a child subject to ongoing court jurisdiction in the sending state, due to allegations or findings that the child has been abused, neglected, or deprived as defined by the laws of the sending state, provided, however, that the placement of such a child into a residential facility shall only require notice of residential placement to the receiving state prior to placement.

2. The interstate placement of a child adjudicated delinquent or unmanageable based on the laws of the sending state and subject to ongoing court jurisdiction of the sending state if:

a. the child is being placed in a residential facility in another member state and is not covered under another compact; or

b. the child is being placed in another member state and the determination of safety and suitability of the placement and services required is not provided through another compact.

3. The interstate placement of any child by a public child-placing agency or private child-placing agency as defined in this compact as a preliminary step to a possible adoption.

B. The provisions of this compact shall not apply to:

1. The interstate placement of a child in a custody proceeding in which a public child-placing agency is not a party, provided the placement is not intended to effectuate an adoption.

2. The interstate placement of a child with a nonrelative in a receiving state by a parent with the legal authority to make such a placement provided, however, that the placement is not intended to effectuate an adoption.

3. The interstate placement of a child by one relative with the lawful authority to make such a placement directly with a relative in a receiving state.

4. The placement of a child, not subject to Article III, Section A, into a residential facility by his or her parent.

5. The placement of a child with a noncustodial parent provided that:

a. The noncustodial parent proves to the satisfaction of a court in the sending state a substantial relationship with the child; and

b. The court in the sending state makes a written finding that placement with the noncustodial parent is in the best interests of the child; and

c. The court in the sending state dismisses its jurisdiction in interstate placements in which the public child-placing agency is a party to the proceeding.

6. A child entering the United States from a foreign country for the purpose of adoption or leaving the United States to go to a foreign country for the purpose of adoption in that country.

7. Cases in which a U.S. citizen child living overseas with his family, at least one of whom is in the U.S. Armed Services, and who is stationed overseas, is removed and placed in a state.

8. The sending of a child by a public child-placing agency or a private child-placing agency for a visit as defined by the rules of the Interstate Commission.

C. For purposes of determining the applicability of this compact to the placement of a child with a family in the Armed Services, the public child-placing agency or private child-placing agency may choose the state of the service member's permanent duty station or the service member's declared legal residence.

D. Nothing in this compact shall be construed to prohibit the concurrent application of the provisions of this compact with other applicable interstate compacts, including the Interstate Compact for Juveniles and the Interstate Compact on Adoption and Medical Assistance. The Interstate Commission may in cooperation with other interstate compact commissions having responsibility for the interstate movement, placement, or transfer of children, promulgate like rules to ensure the coordination of services, timely placement of children, and the reduction of unnecessary or duplicative administrative or procedural requirements.

ARTICLE IV. JURISDICTION

A. Except as provided in Article IV, Section H, and Article V, Section B, paragraph two and three, concerning private and independent adoptions, and in interstate placements in which the public child-placing agency is not a party to a custody proceeding, the sending state shall retain jurisdiction over a child with respect to all matters of custody and disposition of the child which it would have had if the child had remained in the sending state. Such jurisdiction shall also include the power to order the return of the child to the sending state.

B. When an issue of child protection or custody is brought before a court in the receiving state, such court shall confer with the court of the sending state to determine the most appropriate forum for adjudication.

C. In cases that are before courts and subject to this compact, the taking of testimony for hearings before any judicial officer may occur in person or by telephone, audio-video conference, or such other means as approved by the rules of the Interstate Commission; and Judicial officers may communicate with other judicial officers and persons involved in the interstate process as may be permitted by their Canons of Judicial Conduct and any rules promulgated by the Interstate Commission.

D. In accordance with its own laws, the court in the sending state shall have authority to terminate its jurisdiction if:

1. The child is reunified with the parent in the receiving state who is the subject of allegations or findings of abuse or neglect, only with the concurrence of the public child-placing agency in the receiving state; or

2. The child is adopted; or

3. The child reaches the age of majority under the laws of the sending state; or

4. The child achieves legal independence pursuant to the laws of the sending state; or

5. A guardianship is created by a court in the receiving state with the concurrence of the court in the sending state; or

6. An Indian tribe has petitioned for and received jurisdiction from the court in the sending state; or

7. The public child-placing agency of the sending state requests termination and has obtained the concurrence of the public child-placing agency in the receiving state.

E. When a sending state court terminates its jurisdiction, the receiving state child-placing agency shall be notified.

F. Nothing in this article shall defeat a claim of jurisdiction by a receiving state court sufficient to deal with an act of truancy, delinquency, crime, or behavior involving a child as defined by the laws of the receiving state committed by the child in the receiving state which would be a violation of its laws.

G. Nothing in this article shall limit the receiving state's ability to take emergency jurisdiction for the protection of the child.

H. The substantive laws of the state in which an adoption will be finalized shall solely govern all issues relating to the adoption of the child and the court in which the adoption proceeding is filed shall have subject matter jurisdiction regarding all substantive issues relating to the adoption, except:

1. when the child is a ward of another court that established jurisdiction over the child prior to the placement; or

2. when the child is in the legal custody of a public agency in the sending state; or

3. when a court in the sending state has otherwise appropriately assumed jurisdiction over the child, prior to the submission of the request for approval of placement.

I. A final decree of adoption shall not be entered in any jurisdiction until the placement is authorized as an "approved placement" by the public child-placing agency in the receiving state.

ARTICLE V. PLACEMENT EVALUATION

A. Prior to sending, bringing, or causing a child to be sent or brought into a receiving state, the public child-placing agency shall provide a written request for assessment to the receiving state.

B. For placements by a private child-placing agency, a child may be sent or brought, or caused to be sent or brought, into a receiving state, upon receipt and immediate review of the required content in a request for approval of a placement in both the sending and receiving state public child-placing agency. The required content to accompany a request for approval shall include all of the following:

1. A request for approval identifying the child, the birth parent(s), the prospective adoptive parent(s), and the supervising agency, signed by the person requesting approval; and

2. The appropriate consents or relinquishments signed by the birth parents in accordance with the laws of the sending state, or, where permitted, the laws of the state where the adoption will be finalized; and

3. Certification by a licensed attorney or authorized agent of a private adoption agency that the consent or relinquishment is in compliance with the applicable laws of the sending state, or where permitted the laws of the state where finalization of the adoption will occur; and

4. A home study; and

5. An acknowledgment of legal risk signed by the prospective adoptive parents.

C. The sending state and the receiving state may request additional information or documents prior to finalization of an approved placement, but they may not delay travel by the prospective adoptive parents with the child if the required content for approval has been submitted, received, and reviewed by the public child-placing agency in both the sending state and the receiving state.

D. Approval from the public child-placing agency in the receiving state for a provisional or approved placement is required as provided for in the rules of the Interstate Commission.

E. The procedures for making and the request for an assessment shall contain all information and be in such form as provided for in the rules of the Interstate Commission.

F. Upon receipt of a request from the public child-placing agency of the sending state, the receiving state shall initiate an assessment of the proposed placement to determine its safety and suitability. If the proposed placement is a placement with a relative, the public child-placing agency of the sending state may request a determination for a provisional placement.

G. The public child-placing agency in the receiving state may request from the public child-placing agency or the private child-placing agency in the sending state, and shall be entitled to receive supporting or additional information necessary to complete the assessment or approve the placement.

H. The public child-placing agency in the receiving state shall approve a provisional placement and complete or arrange for the completion of the assessment within the timeframes established by the rules of the Interstate Commission.

I. For a placement by a private child-placing agency, the sending state shall not impose any additional requirements to complete the home study that are not required by the receiving state, unless the adoption is finalized in the sending state.

J. The Interstate Commission may develop uniform standards for the assessment of the safety and suitability of interstate placements.

ARTICLE VI. PLACEMENT AUTHORITY

A. Except as otherwise provided in this compact, no child subject to this compact shall be placed into a receiving state until approval for such placement is obtained.

B. If the public child-placing agency in the receiving state does not approve the proposed placement then the child shall not be placed. The receiving state shall provide written documentation of any such determination in accordance with the rules promulgated by the Interstate Commission. Such determination is not subject to judicial review in the sending state.

C. If the proposed placement is not approved, any interested party shall have standing to seek an administrative review of the receiving state's determination.

1. The administrative review and any further judicial review associated with the determination shall be conducted in the receiving state pursuant to its applicable administrative procedures act.

2. If a determination not to approve the placement of the child in the receiving state is overturned upon review, the placement shall be deemed approved, provided, however, that all administrative or judicial remedies have been exhausted or the time for such remedies has passed.

ARTICLE VII. PLACING AGENCY RESPONSIBILITY

A. For the interstate placement of a child made by a public child-placing agency or state court:

1. The public child-placing agency in the sending state shall have financial responsibility for:

a. the ongoing support and maintenance for the child during the period of the placement, unless otherwise provided for in the receiving state; and

b. as determined by the public child-placing agency in the sending state, services for the child beyond the public services for which the child is eligible in the receiving state.

2. The receiving state shall only have financial responsibility for:

a. any assessment conducted by the receiving state; and

b. supervision conducted by the receiving state at the level necessary to support the placement as agreed upon by the public child-placing agencies of the receiving and sending state.

3. Nothing in this provision shall prohibit public child-placing agencies in the sending state from entering into agreements with licensed agencies or persons in the receiving state to conduct assessments and provide supervision.

B. For the placement of a child by a private child-placing agency preliminary to a possible adoption, the private child-placing agency shall be:

1. Legally responsible for the child during the period of placement as provided for in the law of the sending state until the finalization of the adoption.

2. Financially responsible for the child absent a contractual agreement to the contrary.

C. The public child-placing agency in the receiving state shall provide timely assessments, as provided for in the rules of the Interstate Commission.

D. The public child-placing agency in the receiving state shall provide, or arrange for the provision of, supervision and services for the child, including timely reports, during the period of the placement.

E. Nothing in this compact shall be construed as to limit the authority of the public child-placing agency in the receiving state from contracting with a licensed agency or person in the receiving state for an assessment or the provision of supervision or services for the child or otherwise authorizing the provision of supervision or services by a licensed agency during the period of placement.

F. Each member state shall provide for coordination among its branches of government concerning the state's participation in, and compliance with, the compact and Interstate Commission activities, through the creation of an advisory council or use of an existing body or board.

G. Each member state shall establish a central state compact office, which shall be responsible for state compliance with the compact and the rules of the Interstate Commission.

H. The public child-placing agency in the sending state shall oversee compliance with the provisions of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., for placements subject to the provisions of this compact, prior to placement.

I. With the consent of the Interstate Commission, states may enter into limited agreements that facilitate the timely assessment and provision of services and supervision of placements under this compact.

ARTICLE VIII. INTERSTATE COMMISSION FOR THE PLACEMENT OF CHILDREN

The member states hereby establish, by way of this compact, a commission known as the "Interstate Commission for the Placement of Children." The activities of the Interstate Commission are the formation of public policy and are a discretionary state function. The Interstate Commission shall:

A. Be a joint commission of the member states and shall have the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent concurrent action of the respective legislatures of the member states.

B. Consist of one commissioner from each member state who shall be appointed by the executive head of the state human services administration with ultimate responsibility for the child welfare program. The appointed commissioner shall have the legal authority to vote on policy related matters governed by this compact binding the state.

1. Each member state represented at a meeting of the Interstate Commission is entitled to one vote.

2. A majority of the member states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.

3. A representative shall not delegate a vote to another member state.

4. A representative may delegate voting authority to another person from their state for a specified meeting.

C. In addition to the commissioners of each member state, the Interstate Commission shall include persons who are members of interested organizations as defined in the bylaws or rules of the Interstate Commission. Such members shall be ex officio and shall not be entitled to vote on any matter before the Interstate Commission.

D. Establish an executive committee which shall have the authority to administer the day-to-day operations and administration of the Interstate Commission. It shall not have the power to engage in rulemaking.

ARTICLE IX. POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The Interstate Commission shall have the following powers:

A. To promulgate rules and take all necessary actions to effect the goals, purposes, and obligations as enumerated in this compact.

B. To provide for dispute resolution among member states.

C. To issue, upon request of a member state, advisory opinions concerning the meaning or interpretation of the interstate compact, its bylaws, rules, or actions.

D. To enforce compliance with this compact or the bylaws or rules of the Interstate Commission pursuant to Article XII of this compact.

E. To collect standardized data concerning the interstate placement of children subject to this compact as directed through its rules which shall specify the data to be collected, the means of collection and data exchange and reporting requirements.

F. To establish and maintain offices as may be necessary for the transacting of its business.

G. To purchase and maintain insurance and bonds.

H. To hire or contract for services of personnel or consultants as necessary to carry out its functions under the compact and establish personnel qualification policies, and rates of compensation.

I. To establish and appoint committees and officers, including, but not limited to, an executive committee as required by Article X of this compact.

J. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose thereof.

K. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed.

L. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.

M. To establish a budget and make expenditures.

N. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.

O. To report annually to the legislatures, governors, the judiciary, and state advisory councils of the member states concerning the activities of the Interstate Commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.

P. To coordinate and provide education, training and public awareness regarding the interstate movement of children for officials involved in such activity.

Q. To maintain books and records in accordance with the bylaws of the Interstate Commission.

R. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.

ARTICLE X. ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

A. Bylaws

1. Within twelve months after the first Interstate Commission meeting, the Interstate Commission shall adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact.

2. The Interstate Commission's bylaws and rules shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying. The Interstate Commission may exempt from disclosure information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.

B. Meetings

1. The Interstate Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the member states shall call additional meetings.

2. Public notice shall be given by the Interstate Commission of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The Interstate Commission and its committees may close a meeting, or portion thereof, where it determines by two-thirds vote that an open meeting would be likely to:

a. relate solely to the Interstate Commission's internal personnel practices and procedures; or

b. disclose matters specifically exempted from disclosure by federal law; or

c. disclose financial or commercial information which is privileged, proprietary, or confidential in nature; or

d. involve accusing a person of a crime, or formally censuring a person; or

e. disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy or physically endanger one or more persons; or

f. disclose investigative records compiled for law enforcement purposes; or

g. specifically relate to the Interstate Commission's participation in a civil action or other legal proceeding.

3. For a meeting, or portion of a meeting, closed pursuant to this provision, the Interstate Commission's legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exemption provision. The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefor, including a description of the views expressed and the record of a roll call vote. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the Interstate Commission or by court order.

4. The bylaws may provide for meetings of the Interstate Commission to be conducted by telecommunication or other electronic communication.

C. Officers and Staff

1. The Interstate Commission may, through its executive committee, appoint or retain a staff director for such period, upon such terms and conditions and for such compensation as the Interstate Commission may deem appropriate. The staff director shall serve as secretary to the Interstate Commission, but shall not have a vote. The staff director may hire and supervise such other staff as may be authorized by the Interstate Commission.

2. The Interstate Commission shall elect, from among its members, a chairperson and a vice-chairperson of the executive committee and other necessary officers, each of whom shall have such authority and duties as may be specified in the bylaws.

D. Qualified Immunity, Defense and Indemnification

1. The Interstate Commission's staff director and its employees shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to an actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided, that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person.

a. The liability of the Interstate Commission's staff director and employees or Interstate Commission representatives, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents. The Interstate Commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by a criminal act or the intentional or willful and wanton misconduct of such person.

b. The Interstate Commission shall defend the staff director and its employees and, subject to the approval of the Attorney General or other appropriate legal counsel of the member state shall defend the commissioner of a member state in a civil action seeking to impose liability arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.

c. To the extent not covered by the state involved, member state, or the Interstate Commission, the representatives or employees of the Interstate Commission shall be held harmless in the amount of a settlement or judgment, including attorney's fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

ARTICLE XI. RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

A. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.

B. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 15, p. 1 (2000), or such other administrative procedure acts as the Interstate Commission deems appropriate consistent with due process requirements under the United States Constitution as now or hereafter interpreted by the United States Supreme Court. All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Interstate Commission.

C. When promulgating a rule, the Interstate Commission shall, at a minimum:

1. Publish the proposed rule's entire text stating the reason(s) for that proposed rule; and

2. Allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record, and be made publicly available; and

3. Promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.

D. Rules promulgated by the Interstate Commission shall have the force and effect of administrative rules and shall be binding in the compacting states to the extent and in the manner provided for in this compact.

E. Not later than sixty days after a rule is promulgated, an interested person may file a petition in the U.S. District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located for judicial review of such rule. If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside.

F. If a majority of the legislatures of the member states rejects a rule, those states may by enactment of a statute or resolution in the same manner used to adopt the compact cause that such rule shall have no further force and effect in any member state.

G. The existing rules governing the operation of the Interstate Compact on the Placement of Children superseded by this compact shall be null and void no less than twelve but no more than twenty-four months after the first meeting of the Interstate Commission created hereunder, as determined by the members during the first meeting.

H. Within the first twelve months of operation, the Interstate Commission shall promulgate rules addressing the following:

1. Transition rules

2. Forms and procedures

3. Timelines

4. Data collection and reporting

5. Rulemaking

6. Visitation

7. Progress reports/supervision

8. Sharing of information/confidentiality

9. Financing of the Interstate Commission

10. Mediation, arbitration, and dispute resolution

11. Education, training, and technical assistance

12. Enforcement

13. Coordination with other interstate compacts

I. Upon determination by a majority of the members of the Interstate Commission that an emergency exists:

1. The Interstate Commission may promulgate an emergency rule only if it is required to:

a. Protect the children covered by this compact from an imminent threat to their health, safety and well-being; or

b. Prevent loss of federal or state funds; or

c. Meet a deadline for the promulgation of an administrative rule required by federal law.

2. An emergency rule shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, but no later than ninety days after the effective date of the emergency rule.

3. An emergency rule shall be promulgated as provided for in the rules of the Interstate Commission.

ARTICLE XII. OVERSIGHT, DISPUTE RESOLUTION, ENFORCEMENT

A. Oversight

1. The Interstate Commission shall oversee the administration and operation of the compact.

2. The executive, legislative and judicial branches of state government in each member state shall enforce this compact and the rules of the Interstate Commission and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. The compact and its rules shall be binding in the compacting states to the extent and in the manner provided for in this compact.

3. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact.

4. The Interstate Commission shall be entitled to receive service of process in any action in which the validity of a compact provision or rule is the issue for which a judicial determination has been sought and shall have standing to intervene in any proceedings. Failure to provide service of process to the Interstate Commission shall render any judgment, order or other determination, however so captioned or classified, void as to the Interstate Commission, this compact, its bylaws or rules of the Interstate Commission.

B. Dispute Resolution

1. The Interstate Commission shall attempt, upon the request of a member state, to resolve disputes which are subject to the compact and which may arise among member states and between member and nonmember states.

2. The Interstate Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among compacting states. The costs of such mediation or dispute resolution shall be the responsibility of the parties to the dispute.

C. Enforcement

1. If the Interstate Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact, its bylaws, or rules, the Interstate Commission may:

a. Provide remedial training and specific technical assistance; or

b. Provide written notice to the defaulting state and other member states, of the nature of the default and the means of curing the default. The Interstate Commission shall specify the conditions by which the defaulting state must cure its default; or

c. By majority vote of the members, initiate against a defaulting member state legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its principal office, to enforce compliance with the provisions of the compact, its bylaws or rules. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorney's fees; or

d. Avail itself of any other remedies available under state law or the regulation of official or professional conduct.

ARTICLE XIII. FINANCING OF THE COMMISSION

A. The Interstate Commission shall pay, or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.

B. The Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved by its members each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission which shall promulgate a rule binding upon all member states.

C. The Interstate Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Interstate Commission pledge the credit of any of the member states, except by and with the authority of the member state.

ARTICLE XIV. MEMBER STATES, EFFECTIVE DATE, AND AMENDMENT

A. Any state is eligible to become a member state.

B. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five states. The effective date shall be the later of July 1, 2007, or upon enactment of the compact into law by the thirty-fifth state. Thereafter it shall become effective and binding as to any other member state upon enactment of the compact into law by that state. The executive heads of the state human services administration with ultimate responsibility for the child welfare program of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states.

C. The Interstate Commission may propose amendments to the compact for enactment by the member states. No amendment shall become effective and binding on the member states unless and until it is enacted into law by unanimous consent of the member states.

ARTICLE XV. WITHDRAWAL AND DISSOLUTION

A. Withdrawal

1. Once effective, the compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the compact specifically repealing the statute which enacted the compact into law.

2. Withdrawal from this compact shall be by the enactment of a statute repealing the same. The effective date of withdrawal shall be the effective date of the repeal of the statute.

3. The withdrawing state shall immediately notify the president of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The Interstate Commission shall then notify the other member states of the withdrawing state's intent to withdraw.

4. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal.

5. Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the members of the Interstate Commission.

B. Dissolution of compact

1. This compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the compact to one member state.

2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XVI. SEVERABILITY AND CONSTRUCTION

A. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

B. The provisions of this compact shall be liberally construed to effectuate its purposes.

C. Nothing in this compact shall be construed to prohibit the concurrent applicability of other interstate compacts to which the states are members.

ARTICLE XVII. BINDING EFFECT OF COMPACT AND OTHER LAWS

A. Other Laws

1. Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with this compact.

B. Binding Effect of the compact

1. All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the member states.

2. All agreements between the Interstate Commission and the member states are binding in accordance with their terms.

3. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

ARTICLE XVIII. INDIAN TRIBES

Notwithstanding any other provision in this compact, the Interstate Commission may promulgate guidelines to permit Indian tribes to utilize the compact to achieve any or all of the purposes of the compact as specified in Article I of this compact. The Interstate Commission shall make reasonable efforts to consult with Indian tribes in promulgating guidelines to reflect the diverse circumstances of the various Indian tribes.

Source:Laws 2009, LB237, § 3.

Cross References

Administrative Procedure Act, see section 84-920.

Interstate Compact for Juveniles, see section 43-1011.

43-1201. Repealed. Laws 2003, LB 148, § 105.

43-1202. Repealed. Laws 2003, LB 148, § 105.

43-1203. Repealed. Laws 2003, LB 148, § 105.

43-1204. Repealed. Laws 2003, LB 148, § 105.

43-1205. Repealed. Laws 2003, LB 148, § 105.

43-1206. Repealed. Laws 2003, LB 148, § 105.

43-1207. Repealed. Laws 2003, LB 148, § 105.

43-1208. Repealed. Laws 2003, LB 148, § 105.

43-1209. Repealed. Laws 2003, LB 148, § 105.

43-1210. Repealed. Laws 2003, LB 148, § 105.

43-1211. Repealed. Laws 2003, LB 148, § 105.

43-1212. Repealed. Laws 2003, LB 148, § 105.

43-1213. Repealed. Laws 2003, LB 148, § 105.

43-1214. Repealed. Laws 2003, LB 148, § 105.

43-1214.01. Repealed. Laws 2003, LB 148, § 105.

43-1215. Repealed. Laws 2003, LB 148, § 105.

43-1216. Repealed. Laws 2003, LB 148, § 105.

43-1217. Repealed. Laws 2003, LB 148, § 105.

43-1218. Repealed. Laws 2003, LB 148, § 105.

43-1219. Repealed. Laws 2003, LB 148, § 105.

43-1220. Repealed. Laws 2003, LB 148, § 105.

43-1221. Repealed. Laws 2003, LB 148, § 105.

43-1222. Repealed. Laws 2003, LB 148, § 105.

43-1223. Repealed. Laws 2003, LB 148, § 105.

43-1224. Repealed. Laws 2003, LB 148, § 105.

43-1225. Repealed. Laws 2003, LB 148, § 105.

43-1226. Act, how cited.

Sections 43-1226 to 43-1266 shall be known and may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act.

Source:Laws 2003, LB 148, § 1.

43-1227. Terms, defined.

In the Uniform Child Custody Jurisdiction and Enforcement Act:

(1) Abandoned means left without provision for reasonable and necessary care or supervision.

(2) Child means an individual who has not attained eighteen years of age.

(3) Child custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.

(4) Child custody proceeding means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under sections 43-1248 to 43-1264.

(5) Commencement means the filing of the first pleading in a proceeding.

(6) Court means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.

(7) Home state means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

(8) Initial determination means the first child custody determination concerning a particular child.

(9) Issuing court means the court that makes a child custody determination for which enforcement is sought under the Uniform Child Custody Jurisdiction and Enforcement Act.

(10) Issuing state means the state in which a child custody determination is made.

(11) Modification means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.

(12) Person means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.

(13) Person acting as a parent means a person, other than a parent, who:

(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and

(B) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.

(14) Physical custody means the physical care and supervision of a child.

(15) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(16) Tribe means an Indian tribe or band, or Alaskan Native village, which is recognized by federal law or formally acknowledged by a state.

(17) Warrant means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

Source:Laws 2003, LB 148, § 2.

Annotations

Regardless of where a child was born, if the child and his or her parents have been living in another state for the 6 months immediately preceding the commencement of a custody proceeding, then the state in which the child was born is not the child's home state. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).

The clause contained in subsection (7) of this section was meant to provide a home state for a child when a custody proceeding is commenced at a time when the child has not lived in a state for the requisite 6-month period—because the child has not been alive for that period of time. It is not meant to say that a child's state of birth is that child's home state. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).

The Uniform Child Custody Jurisdiction and Enforcement Act does not specifically address the meaning of "temporary absence" as used in this section. But it is clear that time spent living in another state or country due to a permanent military duty assignment is not considered a "temporary absence" simply because it was motivated by such assignment. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).

A child custody proceeding for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act is a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).

A juvenile case brought under section 43-247(3)(a) fits the definition of a "child custody proceeding" under subsection (4) of this section of the Uniform Child Custody Jurisdiction and Enforcement Act. In re Interest of Maxwell T., 15 Neb. App. 47, 721 N.W.2d 676 (2006).

For purposes of the Nebraska Child Custody Jurisdiction Act, "home state" is defined as the state in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as parent, for at least 6 consecutive months. Periods of temporary absence of any of the named persons shall be counted as part of the 6-month or other period. Lamb v. Lamb, 14 Neb. App. 337, 707 N.W.2d 423 (2005).

A person whose only claim to the custody of a child is that he or she had possession of the child for a short period of time in the recent past does not have a colorable right to the custody of the child and is not a person acting as a parent. Garcia v. Rubio, 12 Neb. App. 228, 670 N.W.2d 475 (2003).

43-1228. Proceedings governed by other law.

The Uniform Child Custody Jurisdiction and Enforcement Act does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

Source:Laws 2003, LB 148, § 3.

43-1229. Application to Indian tribes.

(a) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. 1901 et seq., is not subject to the Uniform Child Custody Jurisdiction and Enforcement Act to the extent that it is governed by the Indian Child Welfare Act.

(b) A court of this state shall treat a tribe as if it were a state of the United States for the purpose of applying sections 43-1226 to 43-1247.

(c) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of the Uniform Child Custody Jurisdiction and Enforcement Act shall be recognized and enforced under sections 43-1248 to 43-1264.

Source:Laws 2003, LB 148, § 4.

43-1230. International application of act.

(a) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying sections 43-1226 to 43-1247.

(b) Except as otherwise provided in subsection (c) or (d) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of the Uniform Child Custody Jurisdiction and Enforcement Act shall be recognized and enforced under sections 43-1248 to 43-1264.

(c) A court of this state need not apply the act if the child custody law of a foreign country violates fundamental principles of human rights.

(d) A court of this state need not recognize and enforce an otherwise valid child custody determination of a foreign court under the act if it determines (1) that the child is a habitual resident of Nebraska as defined under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq., and (2) that the child would be at significant and demonstrable risk of child abuse or neglect as defined in section 28-710 if the foreign child custody determination is recognized and enforced. Such a determination shall create a rebuttable presumption against recognition and enforcement of the foreign child custody determination and, thereafter, a court of this state may exercise child custody jurisdiction pursuant to subdivision (a)(1) and subsection (c) of section 43-1238.

(e) The changes made to this section by Laws 2007, LB 341, shall be deemed remedial and shall apply to all cases pending on or before February 2, 2007, and to all cases initiated subsequent thereto.

(f) A court of this state shall have initial and continuing jurisdiction to make any determinations and to grant any relief set forth in subsection (d) of this section upon the motion or complaint seeking such, filed by any parent or custodian of a child who is the subject of a foreign court's custody determination and a habitual resident of Nebraska. The absence or dismissal, either voluntary or involuntary, of an action for the recognition and enforcement of a foreign court's custody determination under subsection (b) of this section shall in no way deprive the court of jurisdiction set forth in this subsection. Subsection (c) of section 43-1238 shall apply to any proceeding under this subsection.

This subsection shall be deemed remedial and shall apply to all cases pending on or before March 6, 2009, and to all cases initiated subsequent thereto.

Source:Laws 2003, LB 148, § 5; Laws 2007, LB341, § 13; Laws 2009, LB201, § 1.

43-1231. Effect of child custody determination.

A child custody determination made by a court of this state that had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act binds all persons who have been served in accordance with the laws of this state or notified in accordance with section 43-1233 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

Source:Laws 2003, LB 148, § 6.

43-1232. Priority.

If a question of existence or exercise of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act is raised in a child custody proceeding, the question, upon request of a party, shall be given priority on the calendar and handled expeditiously.

Source:Laws 2003, LB 148, § 7.

43-1233. Notice to persons outside state.

(a) Notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this state for service of process or by the law of the state in which the service is made. Notice must be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.

(b) Proof of service may be made in the manner prescribed by the law of this state or by the law of the state in which the service is made.

(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

Source:Laws 2003, LB 148, § 8.

43-1234. Appearance and limited immunity.

(a) A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in this state for another proceeding or purpose solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding.

(b) A person who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in this state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.

(c) The immunity granted by subsection (a) of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act committed by an individual while present in this state.

Source:Laws 2003, LB 148, § 9.

43-1235. Communication between courts.

(a) A court of this state may communicate with a court in another state concerning a proceeding arising under the Uniform Child Custody Jurisdiction and Enforcement Act.

(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

(c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.

(d) Except as otherwise provided in subsection (c) of this section, a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.

(e) For the purposes of this section, record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Source:Laws 2003, LB 148, § 10.

43-1236. Taking testimony in another state.

(a) In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.

(b) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.

(c) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

Source:Laws 2003, LB 148, § 11.

43-1237. Cooperation between courts; preservation of records.

(a) A court of this state may request the appropriate court of another state to:

(1) hold an evidentiary hearing;

(2) order a person to produce or give evidence pursuant to procedures of that state;

(3) order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;

(4) forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and

(5) order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.

(b) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (a) of this section.

(c) Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this section may be assessed against the parties according to the law of this state.

(d) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains eighteen years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

Source:Laws 2003, LB 148, § 12.

43-1238. Initial child custody jurisdiction.

(a) Except as otherwise provided in section 43-1241, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under subdivision (a)(1) of this section, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 43-1244 or 43-1245, and:

(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

(3) all courts having jurisdiction under subdivision (a)(1) or (a)(2) of this section have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 43-1244 or 43-1245; or

(4) no court of any other state would have jurisdiction under the criteria specified in subdivision (a)(1), (a)(2), or (a)(3) of this section.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. In addition to having jurisdiction to make judicial determinations about the custody and care of the child, a court of this state with exclusive jurisdiction under subsection (a) of this section has jurisdiction and authority to make factual findings regarding (1) the abuse, abandonment, or neglect of the child, (2) the nonviability of reunification with at least one of the child’s parents due to such abuse, abandonment, neglect, or a similar basis under state law, and (3) whether it would be in the best interests of such child to be removed from the United States to a foreign country, including the child’s country of origin or last habitual residence. If there is sufficient evidence to support such factual findings, the court shall issue an order containing such findings when requested by one of the parties or upon the court’s own motion.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Source:Laws 2003, LB 148, § 13; Laws 2018, LB670, § 8.

Annotations

When presented with a motion for special findings pursuant to this section, the state court should concern itself only with the determinations that have been requested and are supported by sufficient evidence, and not with the ultimate merits or purpose of the juvenile's application for special immigrant juvenile status. Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023).

When special immigrant juvenile status findings are requested in a dissolution action, it is ordinarily appropriate to apply a preponderance of the evidence standard. Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023).

Mother had a significant connection to the country of Togo because she had been married there, had family living there, and voluntarily sent the minor child to live there. DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89 (2018).

A 2018 amendment to subsection (b) of this section clarifies that courts with jurisdiction over an "initial child custody determination" as that term is used in subsection (a) of this section also have jurisdiction and authority to make special findings of fact similar to those contemplated by 8 U.S.C. 1101(a)(27)(J) (Supp. V 2018). In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018).

Because a 2018 amendment to subsection (b) of this section merely clarifies the authority and procedure for making the factual findings in child custody cases, it is a procedural amendment, and applies to pending cases. In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d 581 (2018).

In order for a state to exercise jurisdiction over a child custody dispute, that state must be the home state as defined by the Uniform Child Custody Jurisdiction and Enforcement Act or fall under limited exceptions to the home state requirement specified by the act. Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).

On appeal from a dissolution of marriage decree that awarded primary physical custody of the children to the father, the Court of Appeals could not review, upon the mother's request, an Illinois court's prior decision to not exercise jurisdiction over the parties' child custody dispute under the Uniform Child Custody Jurisdiction and Enforcement Act; the only decision made by the district court was to accept jurisdiction in the matter after the Illinois court declined to exercise jurisdiction over the matter, and any claim of error by the Illinois court would have to be appealed to the appellate courts of that state. Bryant v. Bryant, 28 Neb. App. 362, 943 N.W.2d 742 (2020).

In order for a state to exercise jurisdiction over a child custody dispute, that state must be the home state as defined by the Uniform Child Custody Jurisdiction and Enforcement Act or fall under limited exceptions to the home state requirement specified by the act. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

Unlike the Nebraska Child Custody Jurisdiction Act, the Uniform Child Custody Jurisdiction and Enforcement Act does not contain the alternative analysis allowing jurisdiction to be established in Nebraska when it is not the child's home state but when it is in the best interests of the child to exercise jurisdiction. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

43-1239. Exclusive, continuing jurisdiction.

(a) Except as otherwise provided in section 43-1241, a court of this state which has made a child custody determination consistent with section 43-1238 or 43-1240 has exclusive, continuing jurisdiction over the determination until:

(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

(2) a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.

(b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 43-1238.

Source:Laws 2003, LB 148, § 14.

Annotations

Subsection (a) of this section provides the rules for continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).

Under subsection (a)(1) of this section, whether a court's exclusive and continuing jurisdiction has been lost is a determination to be made by a court of this state. Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006).

When North Dakota made the initial child custody determination concerning a child in the parents' divorce, exclusive and continuing jurisdiction remained with that court under the Uniform Child Custody Jurisdiction and Enforcement Act, either until a determination was made under subsection (a) of this section or until the court declined to exercise jurisdiction under section 43-1244 on the basis of being an inconvenient forum. In re Interest of Kirsten H., 25 Neb. App. 909, 915 N.W.2d 815 (2018).

Exclusive and continuing jurisdiction remains with the district court under the Uniform Child Custody Jurisdiction and Enforcement Act either until jurisdiction is lost under subsection (a) of this section or until the court declines to exercise jurisdiction under section 43-1244 on the basis of being an inconvenient forum. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

The Uniform Child Custody Jurisdiction and Enforcement Act lists evidence concerning the child's care, protection, training, and personal relationships as relevant evidence regarding custody. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

43-1240. Jurisdiction to modify determination.

Except as otherwise provided in section 43-1241, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision (a)(1) or (a)(2) of section 43-1238 and:

(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 43-1239 or that a court of this state would be a more convenient forum under section 43-1244; or

(2) a court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

Source:Laws 2003, LB 148, § 15.

43-1241. Temporary emergency jurisdiction.

(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

(b) If there is no previous child custody determination that is entitled to be enforced under the Uniform Child Custody Jurisdiction and Enforcement Act and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections 43-1238 to 43-1240, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under such sections. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under such sections, a child custody determination made under this section becomes a final determination, if it so provides, and this state becomes the home state of the child.

(c) If there is a previous child custody determination that is entitled to be enforced under the act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 43-1238 to 43-1240, any order issued by a court of this state under this section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under such sections. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.

(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under sections 43-1238 to 43-1240, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to such sections, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Source:Laws 2003, LB 148, § 16.

43-1242. Notice; opportunity to be heard; joinder.

(a) Before a child custody determination is made under the Uniform Child Custody Jurisdiction and Enforcement Act, notice and an opportunity to be heard in accordance with the standards of section 43-1233 shall be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.

(b) The act does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.

(c) The obligation to join a party and the right to intervene as a party in a child custody proceeding under the act are governed by the law of this state as in child custody proceedings between residents of this state.

Source:Laws 2003, LB 148, § 17.

43-1243. Simultaneous proceedings.

(a) Except as otherwise provided in section 43-1241, a court of this state may not exercise its jurisdiction under sections 43-1238 to 43-1247 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction and Enforcement Act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section 43-1244.

(b) Except as otherwise provided in section 43-1241, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 43-1246. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with the act, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with the act does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

(c) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:

(1) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;

(2) enjoin the parties from continuing with the proceeding for enforcement; or

(3) proceed with the modification under conditions it considers appropriate.

Source:Laws 2003, LB 148, § 18.

Annotations

Since a child custody proceeding had been commenced in North Dakota, the Nebraska court should have stayed its juvenile proceeding and communicated with the North Dakota court. In re Interest of Kirsten H., 25 Neb. App. 909, 915 N.W.2d 815 (2018).

The statutory provision to contact the out-of-state court is not mandatory but merely directory. Garcia v. Rubio, 12 Neb. App. 228, 670 N.W.2d 475 (2003).

43-1244. Inconvenient forum.

(a) A court of this state which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or the request of another court.

(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this state;

(3) the distance between the court in this state and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

(d) A court of this state may decline to exercise its jurisdiction under the act if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

Source:Laws 2003, LB 148, § 19.

Annotations

When North Dakota made the initial child custody determination concerning a child in the parents' divorce, exclusive and continuing jurisdiction remained with that court under the Uniform Child Custody Jurisdiction and Enforcement Act, either until a determination was made under subsection (a) of section 43-1239 or until the court declined to exercise jurisdiction under this section on the basis of being an inconvenient forum. In re Interest of Kirsten H., 25 Neb. App. 909, 915 N.W.2d 815 (2018).

Exclusive and continuing jurisdiction remains with the district court under the Uniform Child Custody Jurisdiction and Enforcement Act either until jurisdiction is lost under section 43-1239(a) or until the court declines to exercise jurisdiction under this section on the basis of being an inconvenient forum. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

Overruling a motion to decline jurisdiction under this section as an inconvenient forum does not affect a substantial right and is not a final, appealable order. Meadows v. Meadows, 18 Neb. App. 333, 789 N.W.2d 519 (2010).

43-1245. Jurisdiction declined by reason of conduct.

(a) Except as otherwise provided in section 43-1241 or by other law of this state, if a court of this state has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(2) a court of the state otherwise having jurisdiction under sections 43-1238 to 43-1240 determines that this state is a more appropriate forum under section 43-1244; or

(3) no court of any other state would have jurisdiction under the criteria specified in sections 43-1238 to 43-1240.

(b) If a court of this state declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections 43-1238 to 43-1240.

(c) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than the act.

Source:Laws 2003, LB 148, § 20.

43-1246. Information to be submitted to court.

(a) Subject to local law providing for the confidentiality of procedures, addresses, and other identifying information, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:

(1) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;

(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions, and, if so, identify the court, the case number, and the nature of the proceeding; and

(3) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.

(b) If the information required by subsection (a) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.

(c) If the declaration as to any of the items described in subdivisions (a)(1) through (a)(3) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court's jurisdiction and the disposition of the case.

(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.

(e) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.

Source:Laws 2003, LB 148, § 21.

43-1247. Appearance of parties and child.

(a) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.

(b) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to section 43-1233 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.

(d) If a party to a child custody proceeding who is outside this state is directed to appear under subsection (b) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

Source:Laws 2003, LB 148, § 22.

43-1248. Enforcement provisions; terms, defined.

In sections 43-1248 to 43-1264:

(1) Petitioner means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

(2) Respondent means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

Source:Laws 2003, LB 148, § 23.

43-1249. Enforcement under Hague Convention.

Under sections 43-1248 to 43-1264 a court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.

Source:Laws 2003, LB 148, § 24.

43-1250. Duty to enforce.

(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act or the determination was made under factual circumstances meeting the jurisdictional standards of the act and the determination has not been modified in accordance with the act.

(b) A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The remedies provided in sections 43-1248 to 43-1264 are cumulative and do not affect the availability of other remedies to enforce a child custody determination.

Source:Laws 2003, LB 148, § 25.

43-1251. Temporary visitation.

(a) A court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:

(1) a visitation schedule made by a court of another state; or

(2) the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.

(b) If a court of this state makes an order under subdivision (a)(2) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in sections 43-1238 to 43-1247. The order remains in effect until an order is obtained from the other court or the period expires.

Source:Laws 2003, LB 148, § 26.

43-1252. Registration of child custody determination.

(a) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the district court in this state:

(1) a letter or other document requesting registration;

(2) two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and

(3) except as otherwise provided in section 43-1246, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

(b) On receipt of the documents required by subsection (a) of this section, the registering court shall:

(1) cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and

(2) serve notice upon the persons named pursuant to subdivision (a)(3) of this section and provide them with an opportunity to contest the registration in accordance with this section.

(1) a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;

(2) a hearing to contest the validity of the registered determination shall be requested within twenty days after service of notice; and

(3) failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

(d) A person seeking to contest the validity of a registered order shall request a hearing within twenty days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:

(1) the issuing court did not have jurisdiction under sections 43-1238 to 43-1247;

(2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under such sections; or

(3) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section 43-1233, in the proceedings before the court that issued the order for which registration is sought.

(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served shall be notified of the confirmation.

(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

Source:Laws 2003, LB 148, § 27.

Annotations

When the registration procedure of this section has been followed and the registration is either not contested or, after a hearing, none of the statutory grounds have been established, the registering court shall confirm the registered order. Hollomon v. Taylor, 303 Neb. 121, 926 N.W.2d 670 (2019).

43-1253. Enforcement of registered determination.

(a) A court of this state may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.

(b) A court of this state shall recognize and enforce, but may not modify, except in accordance with sections 43-1238 to 43-1247, a registered child custody determination of a court of another state.

Source:Laws 2003, LB 148, § 28.

43-1254. Simultaneous proceedings.

If a proceeding for enforcement under sections 43-1248 to 43-1264 is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under sections 43-1238 to 43-1247, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

Source:Laws 2003, LB 148, § 29.

43-1255. Expedited enforcement of child custody determination.

(a) A petition under sections 43-1248 to 43-1264 shall be verified. Certified copies of all orders sought to be enforced and of any order confirming registration shall be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.

(b) A petition for enforcement of a child custody determination shall state:

(1) whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;

(2) whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision shall be enforced under the Uniform Child Custody Jurisdiction and Enforcement Act and, if so, identify the court, the case number, and the nature of the proceeding;

(3) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;

(4) the present physical address of the child and the respondent, if known;

(5) whether relief in addition to the immediate physical custody of the child and attorney's fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and

(6) if the child custody determination has been registered and confirmed under section 43-1252, the date and place of registration.

(c) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing shall be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.

(d) An order issued under subsection (c) of this section shall state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under section 43-1259 and may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:

(1) the child custody determination has not been registered and confirmed under section 43-1252 and that:

(A) the issuing court did not have jurisdiction under sections 43-1238 to 43-1247;

(B) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under such sections;

(C) the respondent was entitled to notice, but notice was not given in accordance with the standards of section 43-1233, in the proceedings before the court that issued the order for which enforcement is sought; or

(2) the child custody determination for which enforcement is sought was registered and confirmed under section 43-1252 but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under sections 43-1238 to 43-1247.

Source:Laws 2003, LB 148, § 30.

43-1256. Service of petition and order.

Except as otherwise provided in section 43-1258, the petition and order shall be served, by any method authorized by the law of this state, upon the respondent and any person who has physical custody of the child.

Source:Laws 2003, LB 148, § 31.

43-1257. Hearing and order.

(a) Unless the court issues a temporary emergency order pursuant to section 43-1241, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

(1) the child custody determination has not been registered and confirmed under section 43-1252 and that:

(A) the issuing court did not have jurisdiction under sections 43-1238 to 43-1247;

(B) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under such sections; or

(b) The court shall award the fees, costs, and expenses authorized under section 43-1259 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.

(c) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.

(d) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under sections 43-1248 to 43-1264.

Source:Laws 2003, LB 148, § 32.

43-1258. Warrant to take physical custody of child.

(a) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.

(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. The petition shall be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant shall include the statements required by subsection (b) of section 43-1255.

(1) recite the facts upon which a conclusion of imminent serious physical harm or removal from the state is based;

(2) direct law enforcement officers to take physical custody of the child immediately; and

(3) provide for the placement of the child pending final relief.

(d) The respondent shall be served with the petition, warrant, and order immediately after the child is taken into physical custody.

(e) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.

(f) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.

Source:Laws 2003, LB 148, § 33.

43-1259. Costs, fees, and expenses.

(a) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care, during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

(b) The court may not assess fees, costs, or expenses against a state unless authorized by law other than the Uniform Child Custody Jurisdiction and Enforcement Act.

Source:Laws 2003, LB 148, § 34.

43-1260. Recognition and enforcement.

A court of this state shall accord full faith and credit to an order issued by another state and consistent with the Uniform Child Custody Jurisdiction and Enforcement Act which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under sections 43-1238 to 43-1247.

Source:Laws 2003, LB 148, § 35.

43-1261. Appeals.

An appeal may be taken from a final order in a proceeding under sections 43-1248 to 43-1264 in accordance with expedited appellate procedures in other civil cases. Unless the court enters a temporary emergency order under section 43-1241, the enforcing court may not stay an order enforcing a child custody determination pending appeal.

Source:Laws 2003, LB 148, § 36.

43-1262. Role of county attorney or Attorney General.

(a) In a case arising under the Uniform Child Custody Jurisdiction and Enforcement Act or involving the Hague Convention on the Civil Aspects of International Child Abduction, a county attorney or the Attorney General may take any lawful action, including resort to a proceeding under sections 43-1248 to 43-1264 or any other available civil proceeding, to locate a child, obtain the return of a child, or enforce a child custody determination if there is:

(1) an existing child custody determination;

(2) a request to do so from a court in a pending child custody proceeding;

(3) a reasonable belief that a criminal statute has been violated; or

(4) a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.

(b) A county attorney or the Attorney General acting under this section acts on behalf of the court and may not represent any party.

Source:Laws 2003, LB 148, § 37.

43-1263. Role of law enforcement.

At the request of a county attorney or the Attorney General acting under section 43-1262, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist a county attorney or the Attorney General with responsibilities under such section.

Source:Laws 2003, LB 148, § 38.

43-1264. Costs and expenses.

If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by a county attorney or the Attorney General and law enforcement officers under section 43-1262 or 43-1263.

Source:Laws 2003, LB 148, § 39.

43-1265. Application and construction.

In applying and construing the Uniform Child Custody Jurisdiction and Enforcement Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2003, LB 148, § 40.

43-1266. Motion or other request under prior law; how treated.

A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before January 1, 2004, is governed by the law in effect at the time the motion or other request was made.

Source:Laws 2003, LB 148, § 41.

Annotations

The Uniform Child Custody Jurisdiction and Enforcement Act became operative on January 1, 2004, and establishes that all motions made in a child custody proceeding commenced prior to this date are governed by the prior law in effect at that time. The law governing child custody jurisdiction prior to the effective date of the Uniform Child Custody Jurisdiction and Enforcement Act was the Nebraska Child Custody Jurisdiction Act. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

43-1301. Terms, defined.

For purposes of the Foster Care Review Act, unless the context otherwise requires:

(1) Local board means a local foster care review board created pursuant to section 43-1304;

(2) Office means the Foster Care Review Office created pursuant to section 43-1302;

(3) Foster care facility means any foster family home as defined in section 71-1901, residential child-caring agency as defined in section 71-1926, public agency, private agency, or any other person or entity receiving and caring for foster children;

(4) Foster care placements means (a) all types of placements of juveniles described in sections 43-245 and 43-247, (b) all types of placements of neglected, dependent, or delinquent children, including those made by the Department of Health and Human Services, by the court, by parents, or by third parties, (c) all types of placements of children who have been voluntarily relinquished pursuant to section 43-106.01 to the department or any child-placing agency as defined in section 71-1926 licensed by the department, and (d) all types of placements that are considered to be a trial home visit, including those made directly by the department or office;

(5) Person or court in charge of the child means (a) the Department of Health and Human Services, an association, or an individual who has been made the guardian of a neglected, dependent, or delinquent child by the court and has the responsibility of the care of the child and has the authority by and with the assent of the court to place such a child in a suitable family home or institution or has been entrusted with the care of the child by a voluntary placement made by a parent or legal guardian, (b) the court which has jurisdiction over the child, or (c) the entity having jurisdiction over the child pursuant to the Nebraska Indian Child Welfare Act;

(6) Voluntary placement means the placement by a parent or legal guardian who relinquishes the possession and care of a child to a third party, individual, or agency;

(7) Family unit means the social unit consisting of the foster child and the parent or parents or any person in the relationship of a parent, including a grandparent, and any siblings with whom the foster child legally resided prior to placement in foster care, except that for purposes of potential sibling placement, the child's family unit also includes the child's siblings even if the child has not resided with such siblings prior to placement in foster care;

(8) Residential child-caring agency has the definition found in section 71-1926;

(9) Child-placing agency has the definition found in section 71-1926;

(10) Siblings means biological siblings and legal siblings, including, but not limited to, half-siblings and stepsiblings; and

(11) Trial home visit means a placement of a court-involved juvenile who goes from a foster care placement back to his or her legal parent or parents or guardian but remains as a ward of the state.

Source:Laws 1982, LB 714, § 1; Laws 1985, LB 255, § 40; Laws 1985, LB 447, § 36; Laws 1987, LB 239, § 1; Laws 1990, LB 1222, § 4; Laws 1996, LB 1044, § 194; Laws 1997, LB 307, § 75; Laws 2011, LB177, § 3; Laws 2012, LB998, § 3; Laws 2013, LB265, § 32; Laws 2015, LB265, § 7.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-1301.01. Entering foster care; determination of time.

For the purpose of determining the timing of review hearings, permanency hearings, and other requirements under the Foster Care Review Act, a child is deemed to have entered foster care on the earlier of the date of the first judicial finding that the child has been subjected to child abuse or neglect or the date that is sixty days after the date on which the child is removed from the home.

Source:Laws 1998, LB 1041, § 35.

43-1302. Foster Care Review Office; established; purpose; Foster Care Advisory Committee; created; members; terms; meetings; duties; expenses; executive director; duties.

(1) The Foster Care Review Office is hereby established. The purpose of the office is to provide information and direct reporting to the courts, the Department of Health and Human Services, the Office of Probation Administration, and the Legislature regarding the foster care system in Nebraska; to provide oversight of the foster care system; and to make recommendations regarding foster care policy to the Legislature. The executive director of the Foster Care Review Office shall provide information and reporting services, provide analysis of information obtained, and oversee foster care file audit case reviews and tracking of cases of children in the foster care system. The executive director of the office shall, through information analysis and with the assistance of the Foster Care Advisory Committee, (a) determine key issues of the foster care system and ways to resolve the issues and to otherwise improve the system and (b) make policy recommendations.

(2)(a) The Foster Care Advisory Committee is created. The committee shall have five members appointed by the Governor. Three members shall be local board members, one member shall have data analysis experience, and one member shall be a resident of the state who is representative of the public at large. The members shall have no pecuniary interest in the foster care system and shall not be employed by the office, the Department of Health and Human Services, a county, a residential child-caring agency, a child-placing agency, or a court.

(b) The Health and Human Services Committee of the Legislature shall hold a confirmation hearing for the appointees, and the appointments shall be subject to confirmation by the Legislature, except that the members appointed while the Legislature is not in session shall serve until the next session of the Legislature, at which time a majority of the members of the Legislature shall approve or disapprove of the appointments.

(c) The terms of the members shall be for three years, except that the Governor shall designate two of the initial appointees to serve initial terms ending on March 1, 2014, and three of the initial appointees to serve initial terms ending on March 1, 2015. The Governor shall make the initial appointments within thirty days after July 1, 2012. Members shall not serve more than two consecutive terms, except that members shall serve until their successors have been appointed and qualified. The Governor shall appoint members to fill vacancies from the same category as the vacated position to serve for the remainder of the unexpired term.

(d) The Foster Care Advisory Committee shall meet at least four times each calendar year. Each member shall attend at least two meetings each calendar year and shall be subject to removal for failure to attend at least two meetings unless excused by a majority of the members of the committee. Members shall be reimbursed for expenses as provided in sections 81-1174 to 81-1177.

(e) The duties of the Foster Care Advisory Committee are to:

(i) Hire and fire an executive director for the office who has training and experience in foster care; and

(ii) Support and facilitate the work of the office, including the tracking of children in foster care and reviewing foster care file audit case reviews.

(3) The executive director of the office shall hire, fire, and supervise office staff and shall be responsible for the duties of the office as provided by law, including the annual report and other reporting, review, tracking, data collection and analysis, and oversight and training of local boards.

Source:Laws 1982, LB 714, § 2; Laws 1987, LB 239, § 2; Laws 1990, LB 1222, § 5; Laws 2005, LB 761, § 1; Laws 2007, LB463, § 1133; Laws 2009, LB679, § 1; Laws 2012, LB998, § 4; Laws 2013, LB265, § 33; Laws 2015, LB265, § 8; Laws 2020, LB381, § 30.

43-1303. Office; registry; reports required; foster care file audit case reviews; rules and regulations; local board; report; court; report; visitation of facilities; executive director; powers and duties.

(1) The office shall maintain the statewide register of all foster care placements occurring within the state, and there shall be a weekly report made to the registry of all foster care placements by the Department of Health and Human Services, any child-placing agency, or any court in a form as developed by the office in consultation with representatives of entities required to make such reports. For each child entering and leaving foster care, such report shall consist of identifying information, placement information, the plan or permanency plan developed by the person or court in charge of the child pursuant to section 43-1312, and information on whether any such child was a person immune from criminal prosecution under subsection (5) of section 28-801 or was considered a trafficking victim as defined in section 28-830. The department, the Office of Probation Administration, and every court and child-placing agency shall report any foster care placement within three working days. The report shall contain the following information:

(a) Child identification information, including name, date of birth, gender, race, religion, and ethnicity;

(b) Identification information for parents and stepparents, including name, address, and status of parental rights;

(c) Placement information, including (i) initial placement date, (ii) current placement date, (iii) the name and address of the foster care placement, (iv) if a relative placement or kinship placement, whether the foster care placement is licensed, and (v) whether the foster care placement has received a waiver pursuant to section 71-1904 and the basis for such waiver;

(d) Court status information, including which court has jurisdiction, initial custody date, court hearing date, and results of the court hearing;

(e) Agency or other entity having custody of the child; and

(f) Case worker, probation officer, or person providing direct case management or supervision functions.

(2)(a) The Foster Care Review Office shall designate a local board to conduct foster care file audit case reviews for each case of children in foster care placement.

(b) The office may adopt and promulgate rules and regulations for the following:

(i) Establishment of training programs for local board members which shall include an initial training program and periodic inservice training programs;

(ii) Development of procedures for local boards;

(iii) Establishment of a central record-keeping facility for all local board files, including foster care file audit case reviews;

(iv) Accumulation of data and the making of annual reports on children in foster care placements. Such reports shall include, but not be limited to, (A) personal data on length of time in foster care, (B) number of placements, (C) frequency and results of foster care file audit case reviews and court review hearings, (D) number of children supervised by the foster care programs in the state annually, (E) trend data impacting foster care, services, and placements, (F) analysis of the data, and (G) recommendations for improving the foster care system in Nebraska;

(v) Accumulation of data and the making of quarterly reports regarding the children in foster care placements;

(vi) To the extent not prohibited by section 43-1310, evaluation of the judicial and administrative data collected on foster care and the dissemination of such data to the judiciary, public and private agencies, the department, and members of the public; and

(vii) Manner in which the office shall determine the appropriateness of requesting a court review hearing as provided for in section 43-1313.

(3) A local board shall send a written report to the office for each foster care file audit case review conducted by the local board. A court shall send a written report to the office for each foster care review hearing conducted by the court.

(4)(a) The office shall report and make recommendations to the Legislature, the department, the Office of Probation Administration, the courts, local boards, and county welfare offices.

(b) Such reports and recommendations shall include, but not be limited to, the annual judicial and administrative data collected on foster care pursuant to subsections (2) and (3) of this section and the annual evaluation of such data.

(c) The Foster Care Review Office shall provide copies of such reports and recommendations to each court having the authority to make foster care placements.

(d) The executive director of the office shall provide reports regarding child welfare and juvenile justice data and information on March 1, June 1, September 1, and December 1. The September 1 report shall be the annual report. The executive director shall provide additional reports at a time specified by the Health and Human Services Committee of the Legislature. The reports shall include issues, policy concerns, problems which have come to the attention of the office, and analysis of the data. The reports shall recommend alternatives to the identified problems and related needs of the foster care system. The reports and recommendations submitted to the Legislature shall be submitted electronically.

(e) The Health and Human Services Committee shall coordinate and prioritize data and information requests submitted to the office by members of the Legislature.

(5) The executive director of the office or his or her designees from the office may visit and observe foster care facilities in order to ascertain whether the individual physical, psychological, and sociological needs of each foster child are being met.

(6) At the request of any state agency, the executive director of the office or his or her designees from the office may conduct a case file review process and data analysis regarding any state ward or ward of the court whether placed in-home or out-of-home at the time of the case file review.

Source:Laws 1982, LB 714, § 3; Laws 1990, LB 1222, § 6; Laws 1996, LB 1044, § 195; Laws 1998, LB 1041, § 36; Laws 1999, LB 240, § 1; Laws 2012, LB998, § 5; Laws 2013, LB222, § 10; Laws 2015, LB265, § 9; Laws 2015, LB294, § 16; Laws 2017, LB289, § 19; Laws 2018, LB840, § 1; Laws 2018, LB1078, § 2.

Annotations

The Foster Care Review Act permits but does not require the State Foster Care Review Board to promulgate regulations. OMNI v. Nebraska Foster Care Review Bd., 277 Neb. 641, 764 N.W.2d 398 (2009).

43-1304. Local foster care review boards; members; powers and duties.

There shall be local foster care review boards to conduct the foster care file audit case reviews of children in foster care placement and carry out other powers and duties given to such boards under the Foster Care Review Act. The executive director of the office shall select members to serve on local boards from a list of applications submitted to the office. Each local board shall consist of not less than four and not more than ten members as determined by the executive director. The members of the local board shall reasonably represent the various social, economic, racial, and ethnic groups of the county or counties from which its members may be appointed. A person employed by the office, the Department of Health and Human Services, a residential child-caring agency, a child-placing agency, or a court shall not be appointed to a local board. A list of the members of each local board shall be sent to the department and the Office of Probation Administration.

Source:Laws 1982, LB 714, § 4; Laws 1987, LB 239, § 3; Laws 1996, LB 1044, § 196; Laws 1999, LB 240, § 2; Laws 2012, LB998, § 6; Laws 2013, LB265, § 34; Laws 2015, LB265, § 10.

43-1305. Local board; terms; vacancy.

All local board members shall be appointed for terms of three years. If a vacancy occurs on a local board, the executive director of the office shall appoint another person to serve the unexpired portion of the term. Appointments to fill vacancies on the local board shall be made in the same manner and subject to the same conditions as the initial appointments to such board. The term of each member shall expire on the second Monday in July of the appropriate year. Members shall continue to serve until a successor is appointed.

Source:Laws 1982, LB 714, § 5; Laws 1999, LB 240, § 3; Laws 2012, LB998, § 7.

43-1306. Children and Juveniles Data Feasibility Study Advisory Group; created; members; meetings; duties; Data Steering Subcommittee; Information-Sharing Subcommittee.

(1) The Children and Juveniles Data Feasibility Study Advisory Group is created. The advisory group shall oversee a feasibility study to identify how existing state agency data systems currently used to account for the use of all services, programs, and facilities by children and juveniles in the State of Nebraska can be used to establish an independent, external data warehouse. The Foster Care Review Office shall provide administrative support for the feasibility study and the advisory group.

(2) The advisory group shall include the Inspector General of Nebraska Child Welfare or his or her designee, the State Court Administrator or his or her designee, the probation administrator of the Office of Probation Administration or his or her designee, the executive director of the Nebraska Commission on Law Enforcement and Criminal Justice or his or her designee, the Commissioner of Education or his or her designee, the executive director of the Foster Care Review Office or his or her designee, the Chief Information Officer of the office of Chief Information Officer or his or her designee, and the chief executive officer of the Department of Health and Human Services or his or her designee.

(3) The advisory group shall:

(a) Meet at least twice a year;

(b) Carry out in good faith the duties provided in this section;

(c) Create a Data Steering Subcommittee. Each member of the advisory group shall designate one representative from his or her agency with specific technical knowledge of the agency’s data structure, limitation, and capabilities to serve on the subcommittee. The subcommittee shall meet regularly to manage and discuss data-related items, including the technological and system issues of each agency’s current data system, specific barriers that impact the implementation of a data warehouse, and steps necessary to establish and sustain a data warehouse. The subcommittee shall report its findings to the advisory group;

(d) Create an Information-Sharing Subcommittee. Each member of the advisory group shall designate one representative from his or her agency with specific knowledge of the agency’s legal and regulatory responsibilities and restrictions related to sharing data to serve on the subcommittee. The subcommittee shall meet regularly to manage and discuss the legal and regulatory barriers to establishing a data warehouse and to identify possible solutions. The subcommittee shall report its findings to the advisory group; and

(e) Submit a written report electronically to the Legislature on October 1 of 2017 and 2018, detailing the technical and legal steps necessary to establish the Children and Juveniles Data Warehouse by July 1, 2019. The report to be submitted on October 1, 2018, shall include the final results of the feasibility study to establish the data warehouse by July 1, 2019. The results of the feasibility study shall not be binding on any agency.

(4) For purposes of this section, independent, external data warehouse means a data system which allows for the collection, storage, and analysis of data from multiple agencies but is not solely controlled by the agencies providing the data.

(5) This section terminates on December 31, 2019.

Source:Laws 2017, LB225, § 5.

43-1307. Child placed in foster care; court; duties; office; provide information to local board.

(1) Each court which has placed a child in foster care shall send to the office (a) a copy of the plan or permanency plan, prepared by the person or court in charge of the child in accordance with section 43-1312, to effectuate rehabilitation of the foster child and family unit or permanent placement of the child and (b) a copy of the progress reports as they relate to the plan or permanency plan, including, but not limited to, the court order and the report and recommendations of the guardian ad litem.

(2) The office may provide the designated local board with copies of the information provided by the court under subsection (1) of this section.

Source:Laws 1982, LB 714, § 7; Laws 1998, LB 1041, § 37; Laws 2012, LB998, § 8.

43-1308. Local board; powers and duties.

(1) Except as otherwise provided in the Nebraska Indian Child Welfare Act, the designated local board shall:

(a) Conduct a foster care file audit case review at least once every six months for the case of each child in a foster care placement to determine what efforts have been made to carry out the plan or permanency plan for rehabilitation of the foster child and family unit or for permanent placement of such child pursuant to section 43-1312;

(b) Submit to the court having jurisdiction over such child for the purposes of foster care placement, within thirty days after the foster care file audit case review, its findings and recommendations regarding the efforts and progress made to carry out the plan or permanency plan established pursuant to section 43-1312 together with any other recommendations it chooses to make regarding the child. The findings and recommendations shall include whether there is a need for continued out-of-home placement, whether the current placement is safe and appropriate, the specific reasons for the findings and recommendations, including factors, opinions, and rationale considered in the foster care file audit case review, whether the grounds for termination of parental rights under section 43-292 appear to exist, and the date of the next foster care file audit case review by the designated local board;

(c) If the return of the child to his or her parents is not likely, recommend referral for adoption and termination of parental rights, guardianship, placement with a relative, or, as a last resort, another planned, permanent living arrangement; and

(d) Promote and encourage stability and continuity in foster care by discouraging unnecessary changes in the placement of foster children and by encouraging the recruitment of foster parents who may be eligible as adoptive parents.

(2) When the office or designated local board determines that the interests of a child in a foster care placement would be served thereby, the office or designated local board may request a court review hearing as provided for in section 43-1313.

(3) Due to the confidential and protected nature of child-specific and family-specific information regarding mental and behavioral health services, if such information is discussed at a local board meeting or a portion of a meeting, the portion of the meeting at which such information is discussed shall be exempt from the Open Meetings Act.

Source:Laws 1982, LB 714, § 8; Laws 1985, LB 255, § 41; Laws 1990, LB 1222, § 7; Laws 1998, LB 1041, § 38; Laws 2012, LB998, § 9; Laws 2015, LB265, § 11.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Open Meetings Act, see section 84-1407.

43-1309. Records; release; when.

Upon the request of the office or designated local board, any records pertaining to a case assigned to such local board shall be furnished to the office or designated local board by the Department of Health and Human Services, by any public official or employee of a political subdivision having relevant contact with the child, or, upon court order, by the Office of Probation Administration. Upon the request of the Foster Care Review Office or designated local board, and if such information is not obtainable elsewhere, the court having jurisdiction of the foster child shall release such information to the office or designated local board as the court deems necessary to determine the physical, psychological, and sociological circumstances of such foster child.

Source:Laws 1982, LB 714, § 9; Laws 1990, LB 1222, § 8; Laws 1996, LB 1044, § 197; Laws 2012, LB998, § 10; Laws 2015, LB265, § 12.

43-1310. Records and information; confidential; unauthorized disclosure; penalty.

All records and information regarding foster children and their parents or relatives in the possession of the office or local board shall be deemed confidential. Unauthorized disclosure of such confidential records and information or any violation of the rules and regulations adopted and promulgated by the Department of Health and Human Services or the office shall be a Class III misdemeanor.

Source:Laws 1982, LB 714, § 10; Laws 1990, LB 1222, § 9; Laws 1996, LB 1044, § 198; Laws 2012, LB998, § 11.

43-1311. Child removed from home; person or court in charge of child; duties.

Except as otherwise provided in the Nebraska Indian Child Welfare Act, immediately following removal of a child from his or her home pursuant to section 43-284, the person or court in charge of the child shall:

(1) Conduct or cause to be conducted an investigation of the child's circumstances designed to establish a safe and appropriate plan for the rehabilitation of the foster child and family unit or permanent placement of the child;

(2) Require that the child receive a medical examination within two weeks of his or her removal from his or her home;

(3) Subject the child to such further diagnosis and evaluation as is necessary;

(4) Require that the child attend the same school as prior to the foster care placement unless the person or court in charge determines that attending such school would not be in the best interests of the child; and

(5) Notify the Department of Health and Human Services to identify, locate, and provide written notification to adult relatives of the child as provided in section 43-1311.01.

Source:Laws 1982, LB 714, § 11; Laws 1985, LB 255, § 42; Laws 1998, LB 1041, § 39; Laws 2008, LB1014, § 44; Laws 2011, LB177, § 4.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

43-1311.01. Child removed from home; notice to noncustodial parent and certain relatives; when; information provided; department; duties.

(1) When notified pursuant to section 43-1311 or upon voluntary placement of a child, the Department of Health and Human Services shall, as provided in this section, identify, locate, and provide written notification of the removal of the child from his or her home, within thirty days after removal, to any noncustodial parent and to all grandparents, all parents who have legal custody of a sibling of the child, and all adult siblings, adult aunts, adult uncles, adult cousins, and adult relatives suggested by the child or the child's parents, except when that relative's history of family or domestic violence makes notification inappropriate. For purposes of this section, sibling means an individual who is considered by Nebraska law to be a sibling or who would have been considered a sibling under Nebraska law but for a termination of parental rights or other disruption in parental rights such as the death of a parent. If the child is an Indian child as defined in section 43-1503, the child's extended family members as defined in such section shall be notified. Such notification shall include all of the following information:

(a) The child has been or is being removed from the custody of the parent or parents of the child;

(b) An explanation of the options the relative has under federal, state, and local law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice;

(c) A description of the requirements for the relative to serve as a foster care provider or other type of care provider for the child and the additional services, training, and other support available for children receiving such care; and

(d) Information concerning the option to apply for guardianship assistance payments.

(2) The department shall investigate the names and locations of the relatives, including, but not limited to, asking the child in an age-appropriate manner about relatives important to the child and obtaining information regarding the location of the relatives.

(3) The department shall provide to the court, within thirty calendar days after removal of the child, the names and relationship to the child of all relatives contacted, the method of contact, and the responses received from the relatives.

Source:Laws 2011, LB177, § 6; Laws 2015, LB296, § 1.

Annotations

Despite the Legislature's creation of new duties for the Department of Health and Human Services to preserve sibling relationships, it has not created a private right of action for an adjudicated child's sibling to enforce the department's duties under section 43-1311.02 and this section. Instead, section 43-1311.02(3) specifically limits the right to enforce these duties to parties. In re Interest of Nizigiyimana R., 295 Neb. 324, 889 N.W.2d 362 (2016).

Under this section and section 43-1311.02, the Department of Health and Human Services' duties to make reasonable efforts to implement a joint-sibling placement do not depend upon the continued existence of the parent-child relationship with each of the siblings. The department's duties exist even if the siblings' custody orders were entered at separate times, even if a court has terminated a parent's relationship with each child, and even if the siblings have not previously lived together. Additionally, the department's duties regarding siblings do not depend on whether both siblings are adjudicated under section 43-247 or whether the department has placement authority for both siblings. Instead, the Legislature intended for the department to develop and maintain an adjudicated child's sibling relationships in a variety of circumstances. In re Interest of Nizigiyimana R., 295 Neb. 324, 889 N.W.2d 362 (2016).

43-1311.02. Placement of child and siblings; sibling visitation or ongoing interaction; motions authorized; court review; department; duties; right of sibling to intervene.

(1)(a) Reasonable efforts shall be made to place a child and the child's siblings in the same foster care placement or adoptive placement, unless such placement is contrary to the safety or well-being of any of the siblings. This requirement applies even if the custody orders of the siblings are made at separate times and even if the children have no preexisting relationship.

(b) If the siblings are not placed together in a joint-sibling placement, the Department of Health and Human Services shall provide the siblings and the court with the reasons why a joint-sibling placement would be contrary to the safety or well-being of any of the siblings.

(2) When siblings are not placed together in a joint-sibling placement, the department shall make a reasonable effort to provide for frequent sibling visitation or ongoing interaction between the child and the child's siblings unless the department provides the siblings and the court with reasons why such sibling visitation or ongoing interaction would be contrary to the safety or well-being of any of the siblings. The court shall determine the type and frequency of sibling visitation or ongoing interaction to be implemented by the department. The court shall make a determination as to whether reasonable efforts have been made by the department to facilitate sibling placement and sibling visitation or other ongoing interaction and whether such placement and visitation or other ongoing interaction is contrary to the safety or well-being of any of the siblings.

(3) The department shall file a written sibling placement report as required by subsection (3) of section 43-285. Such a report shall include the reasonable efforts of the department to locate the child’s siblings and, if a joint-sibling placement is made, whether such placement continues to be consistent with the safety and well-being of the children. If joint-sibling placement is not possible, the report shall include the reasons why a joint-sibling placement is and continues to be contrary to the safety or well-being of any of the siblings, the department’s continuing reasonable efforts to place a child with a sibling in the same foster care or adoptive placement, and the department’s continuing reasonable efforts to facilitate sibling visitation.

(4) Parties to the case, including a child's sibling, may file a motion for joint-sibling placement, sibling visitation, or ongoing interaction between siblings.

(5) The court shall periodically review and evaluate the effectiveness and appropriateness of the joint-sibling placement, sibling visitation, or ongoing interaction between siblings.

(6) If an order is entered for termination of parental rights of siblings who are subject to this section, unless the court has suspended or terminated joint-sibling placement, sibling visitation, or ongoing interaction between siblings, the department shall make reasonable efforts to make a joint-sibling placement or do all of the following to facilitate frequent sibling visitation or ongoing interaction between the child and the child's siblings when the child is adopted or enters a permanent placement: (a) Include in the training provided to prospective adoptive parents information regarding the importance of sibling relationships to an adopted child and counseling methods for maintaining sibling relationships; (b) provide prospective adoptive parents with information regarding the child's siblings; and (c) encourage prospective adoptive parents to plan for facilitating post-adoption contact between the child and the child's siblings.

(7) Any information regarding court-ordered or authorized joint-sibling placement, sibling visitation, or ongoing interaction between siblings shall be provided by the department to the parent or parents if parental rights have not been terminated unless the court determines that doing so would be contrary to the safety or well-being of the child and to the foster parent, relative caretaker, guardian, prospective adoptive parent, and child as soon as reasonably possible following the entry of the court order or authorization as necessary to facilitate the sibling time.

(8) For purposes relative to the administration of the federal foster care program and the state plans pursuant to Title IV-B and Title IV-E of the federal Social Security Act, as such act existed on January 1, 2015, the term sibling means an individual considered to be a sibling under Nebraska law or an individual who would have been considered a sibling but for a termination of parental rights or other disruption of parental rights such as death of a parent.

(9) A sibling of a child under the jurisdiction of the court shall have the right to intervene at any point in the proceedings for the limited purpose of seeking joint-sibling placement, sibling visitation, or ongoing interaction with their sibling.

(10) This section shall not be construed to subordinate the rights of foster or adoptive parents of a child to the rights of the parents of a sibling of that child or to subordinate the rights of an adoptive, foster, or biological parent to the rights of a child seeking sibling placement or visitation.

Source:Laws 2011, LB177, § 7; Laws 2015, LB296, § 2; Laws 2018, LB1078, § 3.

Annotations

"Sibling," under the Foster Care Review Act generally and under subsection (9) of this section specifically, means a person with whom one shares a common parent or parents. In re Interest of Jordon B., 312 Neb. 827, 981 N.W.2d 242 (2022).

Despite the Legislature's creation of new duties for the Department of Health and Human Services to preserve sibling relationships, it has not created a private right of action for an adjudicated child's sibling to enforce the department's duties under section 43-1311.01 and this section. Instead, subsection (3) of this section specifically limits the right to enforce these duties to parties. In re Interest of Nizigiyimana R., 295 Neb. 324, 889 N.W.2d 362 (2016).

Under this section and section 43-1311.01, the Department of Health and Human Services' duties to make reasonable efforts to implement a joint-sibling placement do not depend upon the continued existence of the parent-child relationship with each of the siblings. The department's duties exist even if the siblings' custody orders were entered at separate times, even if a court has terminated a parent's relationship with each child, and even if the siblings have not previously lived together. Additionally, the department's duties regarding siblings do not depend on whether both siblings are adjudicated under section 43-247 or whether the department has placement authority for both siblings. Instead, the Legislature intended for the department to develop and maintain an adjudicated child's sibling relationships in a variety of circumstances. In re Interest of Nizigiyimana R., 295 Neb. 324, 889 N.W.2d 362 (2016).

43-1311.03. Written independent living transition proposal; development; contents; transition team; department; duties; information regarding Young Adult Bridge to Independence Act; notice; contents; out-of-home placement; hearing, when held.

(1) When a child placed in foster care turns fourteen years of age or enters foster care and is at least fourteen years of age, a written independent living transition proposal shall be developed by the Department of Health and Human Services at the direction and involvement of the child to prepare for the transition from foster care to successful adulthood. Any revision or addition to such proposal shall also be made in consultation with the child. The transition proposal shall be personalized based on the child's needs and shall describe the services needed for the child to transition to a successful adulthood as provided in the Nebraska Strengthening Families Act. The transition proposal shall include, but not be limited to, the following needs and the services needed for the child to transition to a successful adulthood as provided in the Nebraska Strengthening Families Act:

(a) Education;

(b) Employment services and other workforce support;

(c) Health and health care coverage, including the child's potential eligibility for medicaid coverage under the federal Patient Protection and Affordable Care Act, 42 U.S.C. 1396a(a)(10)(A)(i)(IX), as such act and section existed on January 1, 2013;

(d) Behavioral health treatment and support needs and access to such treatment and support;

(e) Financial assistance, including education on credit card financing, banking, and other services;

(f) Housing;

(g) Relationship development and permanent connections;

(h) Adult services, if the needs assessment indicates that the child is reasonably likely to need or be eligible for services or other support from the adult services system; and

(i) Information, planning, and assistance to obtain a driver's license as allowed under state law and consistent with subdivision (9)(b)(iv) of this section, including, but not limited to, providing the child with a copy of a driver's manual, identifying driver safety courses and resources to access a driver safety course, and identifying potential means by which to access a motor vehicle for such purposes.

(2) The transition proposal shall be developed and frequently reviewed by the department in collaboration with the child's transition team. The transition team shall be comprised of the child, the child's caseworker, the child's guardian ad litem, individuals selected by the child, and individuals who have knowledge of services available to the child. As provided in the Nebraska Strengthening Families Act, one of the individuals selected by the child may be designated as the child's advisor and, as necessary, advocate for the child with respect to the application of the reasonable and prudent parent standard and for the child on normalcy activities. The department may reject an individual selected by the child to be a member of the team if the department has good cause to believe the individual would not act in the best interests of the child.

(3) The transition proposal shall be considered a working document and shall be, at the least, updated for and reviewed at every permanency or review hearing by the court. The court shall determine whether the transition proposal includes the services needed to assist the child to make the transition from foster care to a successful adulthood.

(4) The transition proposal shall document what efforts were made to involve and engage the child in the development of the transition proposal and any revisions or additions to the transition proposal. As provided in the Nebraska Strengthening Families Act, the court shall ask the child, in an age or developmentally appropriate manner, about his or her involvement in the development of the transition proposal and any revisions or additions to such proposal. As provided in the Nebraska Strengthening Families Act, the court shall make a finding as to the child's involvement in the development of the transition proposal and any revisions or additions to such proposal.

(5) The final transition proposal prior to the child's leaving foster care shall specifically identify how the need for housing will be addressed.

(6) If the child is interested in pursuing higher education, the transition proposal shall provide for the process in applying for any applicable state, federal, or private aid.

(7) The department shall provide without cost a copy of any consumer report as defined in 15 U.S.C. 1681a(d), as such section existed on January 1, 2016, pertaining to the child each year until the child is discharged from care and assistance, including when feasible, from the child's guardian ad litem, in interpreting and resolving any inaccuracies in the report as provided in the Nebraska Strengthening Families Act.

(8)(a) Any child who is adjudicated to be a juvenile described in (i) subdivision (3)(a) of section 43-247 and who is in an out-of-home placement or (ii) subdivision (8) of section 43-247 and whose guardianship or state-funded adoption assistance agreement was disrupted or terminated after the child had attained the age of sixteen years, shall receive information regarding the Young Adult Bridge to Independence Act and the bridge to independence program available under the act.

(b) The department shall create a clear and developmentally appropriate written notice discussing the rights of eligible young adults to participate in the program. The notice shall include information about eligibility and requirements to participate in the program, the extended services and support that young adults are eligible to receive under the program, and how young adults can be a part of the program. The notice shall also include information about the young adult's right to request a client-directed attorney to represent the young adult pursuant to section 43-4510 and the benefits and role of an attorney.

(c) The department shall disseminate this information to any child who was adjudicated to be a juvenile described in subdivision (3)(a) of section 43-247 and who is in an out-of-home placement at sixteen years of age and any child who was adjudicated to be a juvenile under subdivision (8) of section 43-247 and whose guardianship or state-funded adoption assistance agreement was disrupted or terminated after the child had attained the age of sixteen years. The department shall disseminate this information to any such child yearly thereafter until such child attains the age of nineteen years and not later than ninety days prior to the child's last court review before attaining nineteen years of age or being discharged from foster care to independent living. In addition to providing the written notice, not later than ninety days prior to the child's last court review before attaining nineteen years of age or being discharged from foster care to independent living, a representative of the department shall explain the information contained in the notice to the child in person and the timeline necessary to avoid a lapse in services and support.

(d)(i) On and after January 1, 2025, a child adjudicated to be a juvenile as described in subdivision (1), (2), or (3)(b) of section 43-247 and who is in a court-ordered out-of-home placement in the six months prior to attaining nineteen years of age shall receive information regarding the Young Adult Bridge to Independence Act and the bridge to independence program available under the act. The Office of Probation Administration shall identify any such juvenile and provide the juvenile with information regarding the Young Adult Bridge to Independence Act and the bridge to independence program available under the act.

(ii) Any party to such juvenile's court case, or the court upon its own motion, may request a hearing in the six months prior to the juvenile attaining nineteen years of age for the court to consider whether it is necessary for the juvenile to remain in the court-ordered out-of-home placement if the requesting party or the court believes it would be contrary to the juvenile's welfare to return to the family home. The following factors may guide the court in finding whether or not return to the family home would be contrary to the juvenile's welfare:

(A) Whether the juvenile is disconnected from family support that would assist the juvenile in transitioning to adulthood;

(B) Whether the juvenile faces the risk of homelessness upon closure of the juvenile court case; or

(C) Whether the Office of Probation Administration has made reasonable efforts to return the juvenile to the family home prior to the juvenile's nineteenth birthday.

(iii) The court shall set forth its finding in a written order. If the court finds that return to the family home would be contrary to the juvenile's welfare, the Office of Probation Administration shall notify the Department of Health and Human Services within ten days after such finding is made. As soon as practicable thereafter and prior to the child's nineteenth birthday, a representative of the department shall explain the information contained in the written notice described in this subsection to the juvenile in person and the timeline necessary to avoid a lapse in services and support. If the juvenile remains in a court-ordered out-of-home placement upon attaining nineteen years of age pursuant to a court order as described in section 43-4504, the department shall proceed pursuant to sections 43-4506 and 43-4508.

(iv) A juvenile with a current pending motion to revoke probation before the court at the time of the hearing shall not be eligible for the Young Adult Bridge to Independence Act.

(9)(a) The department shall provide the child with the documents, information, records, and other materials described in subdivision (9)(b) of this section, (i) if the child is leaving foster care, on or before the date the child reaches eighteen or nineteen years of age or twenty-one years of age if the child participates in the bridge to independence program, and (ii) at the age or as otherwise prescribed in subdivision (9)(b) of this section.

(b) The department shall provide the child with:

(i) A certified copy of the child's birth certificate and facilitate securing a federal social security card when the child is eligible for such card;

(ii) Health insurance information and all documentation required for enrollment in medicaid coverage for former foster care children as available under the federal Patient Protection and Affordable Care Act, 42 U.S.C. 1396a(a)(10)(A)(i)(IX), as such act and section existed on January 1, 2013;

(iii) A copy of the child's medical records;

(iv) A driver's license or identification card issued by a state in accordance with the requirements of section 202 of the REAL ID Act of 2005, as such section existed on January 1, 2016, and when requested by a child fourteen years of age or older, all documents necessary to obtain such license or card;

(v) A copy of the child's educational records;

(vi) A credit report check;

(vii) Contact information, with permission, for family members, including siblings, with whom the child can maintain a safe and appropriate relationship, and other supportive adults;

(viii) A list of local community resources, including, but not limited to, support groups, health clinics, mental and behavioral health and substance abuse treatment services and support, pregnancy and parenting resources, and employment and housing agencies;

(ix) Written information, including, but not limited to, contact information, for disability resources or benefits that may assist the child as an adult, specifically including information regarding state programs established pursuant to 42 U.S.C. 677, as such section existed on January 1, 2016, and disability benefits, including supplemental security income pursuant to 42 U.S.C. 1382 et seq., as such sections existed on January 1, 2016, or social security disability insurance pursuant to 42 U.S.C. 423, as such section existed on January 1, 2016, if the child may be eligible as an adult;

(x) An application for public assistance and information on how to access the system to determine public assistance eligibility;

(xi) A letter prepared by the department that verifies the child's name and date of birth, dates the child was in foster care, and whether the child was in foster care on his or her eighteenth, nineteenth, or twenty-first birthday and enrolled in medicaid while in foster care;

(xii) Written information about the child's Indian heritage or tribal connection, if any; and

(xiii) Written information on how to access personal documents in the future.

(c) All fees associated with securing the certified copy of the child's birth certificate or obtaining a driver's license or a state identification card shall be waived by the state.

(d) The transition proposal shall document that the child was provided all of the documents listed in this subsection. The court shall make a finding as to whether the child has received the documents as part of the independence hearing as provided in subdivision (2)(d) of section 43-285.

Source:Laws 2011, LB177, § 8; Laws 2013, LB216, § 17; Laws 2013, LB269, § 3; Laws 2014, LB853, § 25; Laws 2016, LB746, § 19; Laws 2019, LB600, § 2; Laws 2020, LB219, § 1; Laws 2023, LB50, § 24.

Cross References

Nebraska Strengthening Families Act, see section 43-4701.

Young Adult Bridge to Independence Act, see section 43-4501.

43-1312. Plan or permanency plan for foster child; contents; investigation; hearing; court; duties.

(1) Following the investigation conducted pursuant to section 43-1311 and immediately following the initial placement of the child, the person or court in charge of the child shall cause to be established a safe and appropriate plan for the child. The plan shall contain at least the following:

(a) The purpose for which the child has been placed in foster care;

(b) The estimated length of time necessary to achieve the purposes of the foster care placement;

(c) A description of the services which are to be provided in order to accomplish the purposes of the foster care placement;

(d) The person or persons who are directly responsible for the implementation of such plan;

(e) A complete record of the previous placements of the foster child;

(f) The name of the school the child shall attend as provided in section 43-1311; and

(g) The efforts made to involve and engage the child in the development of such plan as provided in the Nebraska Strengthening Families Act.

(2) If the return of the child to his or her parents is not likely based upon facts developed as a result of the investigation, the Department of Health and Human Services shall recommend termination of parental rights and referral for adoption, guardianship, placement with a relative, or, as a last resort, and only in the case of a child who has attained sixteen years of age, another planned permanent living arrangement. If the child is removed from his or her home, the department shall make reasonable efforts to accomplish joint-sibling placement or sibling visitation or ongoing interaction between the siblings as provided in section 43-1311.02.

(3) Each child in foster care under the supervision of the state shall have a permanency hearing by a court, no later than twelve months after the date the child enters foster care and annually thereafter during the continuation of foster care. The court's order shall include the determinations required by section 43-4711 and a finding regarding the appropriateness of the permanency plan determined for the child and shall include whether, and if applicable when, the child will be:

(a) Returned to the parent;

(b) Referred to the state for filing of a petition for termination of parental rights;

(d) Referred for guardianship; or

(e) In cases where the state agency has documented to the court a compelling reason for determining that it would not be in the best interests of the child to return home, (i) referred for termination of parental rights, (ii) placed for adoption with a fit and willing relative, or (iii) placed with a guardian.

(4) As provided in the Nebraska Strengthening Families Act, in the case of any child age sixteen years of age or older for whom another planned permanent living arrangement is the recommended or court-approved permanency plan:

(a) The permanency plan shall include the identification of significant, supportive connections with identified adults willing to be consistently involved in the child’s life as the child transitions to adulthood;

(b) The department shall document the intensive, ongoing, and, as of the date of the hearing, unsuccessful efforts made by the department to return the child home or secure a placement for the child with a fit and willing relative, a legal guardian, or an adoptive parent; and

(i) Ask the child about the desired permanency outcome for the child;

(ii) Make a determination explaining why, as of the date of the hearing, another planned permanent living arrangement is the best permanency plan for the child and the compelling reasons why it continued to not be in the best interests of the child to return home, be placed for adoption, be placed with a legal guardian, or be placed with a fit and willing relative; and

(iii) Make a determination that the department has met the requirements in subdivisions (a) and (b) of this subsection before approving a permanency plan of another planned permanent living arrangement for a child sixteen years of age or older.

Source:Laws 1982, LB 714, § 12; Laws 1998, LB 1041, § 40; Laws 2008, LB1014, § 45; Laws 2011, LB177, § 5; Laws 2016, LB746, § 20.

Cross References

Nebraska Strengthening Families Act, see section 43-4701.

Annotations

Because subsection (3) of this section requires a permanency hearing for every child in foster care, the court is required to have a permanency hearing even if the child is in foster care because of his or her delinquent behavior, instead of parental abuse or neglect. In re Interest of Spencer O., 277 Neb. 776, 765 N.W.2d 443 (2009).

Under subsection (3) of this section, a permanency hearing considers the appropriateness of a plan for a child in foster care with respect to the plan's likelihood of providing, inter alia, a safe, stable, and nurturing environment. Pursuant to subsection (3) of this section, a permanency hearing must be conducted no later than twelve months after the child enters foster care. In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).

An order changing the permanency plan from reunification to adoption but otherwise continuing all of the same terms from prior dispositional orders, from which no appeal was taken and which provided the parent with an opportunity for reunification by complying with the terms of the rehabilitation plan, does not affect a substantial right of the parent and is not a final order. In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (2009).

43-1312.01. Placement of child; order granting guardianship; court retain jurisdiction over child; termination of guardianship; when; effect of guardianship.

(1) If the permanency plan for a child established pursuant to section 43-1312 does not recommend return of the child to his or her parent or that the child be placed for adoption, the juvenile court may place the child in a guardianship in a relative home as defined in section 71-1901, in a kinship home as defined in section 71-1901, or with an individual as provided in section 43-285 if:

(a) The child is a juvenile who has been adjudged to be under subdivision (3)(a) of section 43-247;

(b) The child has been in the placement for at least six months;

(d) The guardian:

(i) Is suitable and able to provide a safe and permanent home for the child;

(ii) Has made a commitment to provide for the financial, medical, physical, and emotional needs of the child until the child reaches the age of majority or until the termination of extended guardianship assistance payments and medical care pursuant to section 43-4511;

(iii) Has made a commitment to prepare the child for adulthood and independence; and

(iv) Agrees to give notice of any changes in his or her residential address or the residence of the child by filing a written document in the juvenile court file of the child.

(2) In the order granting guardianship, the juvenile court:

(a) Shall grant to the guardian such powers, rights, and duties with respect to the care, maintenance, and treatment of the child as the biological or adoptive parent of the child would have;

(b) May specify the frequency and nature of family time or contact between the child and his or her parents, if appropriate;

(c) May specify the frequency and nature of family time or contact between the child and his or her siblings, if appropriate; and

(d) Shall require that the guardian not return the child to the physical care and custody of the person from whom the child was removed without prior approval of the court.

(3) The juvenile court shall retain jurisdiction over the child for modification or termination of the guardianship order. The court shall discontinue permanency reviews and case reviews and shall relieve the Department of Health and Human Services of the responsibility of supervising the placement of the child. Notwithstanding the retention of juvenile court jurisdiction, the guardianship placement shall be considered permanent for the child.

(4) The child shall remain in the custody of the guardian unless the order creating the guardianship is modified by the court.

(5) Guardianships established under this section shall terminate on the child's nineteenth birthday unless the child is eligible for continued guardianship assistance payments under section 43-4511 and an agreement is signed by the Department of Health and Human Services, the guardian, and the young adult, as defined in section 43-4503, to continue the guardianship assistance. The guardian shall ensure that any guardianship assistance funds provided by the department and received by the guardian for the purpose of an extended guardianship shall be used for the benefit of the young adult. The department shall adopt and promulgate rules and regulations defining services and supports encompassed by such benefit.

(6) Upon the child's nineteenth birthday regardless of the existence of an agreement to extend the guardianship until the child's twenty-first birthday, the guardian shall no longer have the legal authority to make decisions on behalf of the child and shall have no more authority over the person or property of the child than a biological or adoptive parent would have over his or her child, absent consent from the child.

(7) A guardianship established under this section does not terminate the parent-child relationship, including:

(a) The right of the child to inherit from his or her parents;

(b) The right of the biological parents to consent to the child's adoption; and

(8) The Department of Health and Human Services shall adopt and promulgate rules and regulations for the administration of this section.

Source:Laws 2014, LB908, § 8; Laws 2015, LB243, § 13.

Annotations

A juvenile court may not, under section 43-285(2), change a juvenile's permanency plan from family reunification to guardianship unless there has been a prior adjudication of the juvenile under section 43-247(3)(a), which adjudication is a requirement under this section for establishing a juvenile guardianship. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

The elements under subsection (1) of this section form a conjunctive list, each of which must be met before a juvenile guardianship may be established. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).

43-1313. Review of dispositional order; when; procedure.

When a child is in foster care placement, the court having jurisdiction over such child for the purposes of foster care placement shall review the dispositional order for such child at least once every six months. The court may reaffirm the order or direct other disposition of the child. Any review hearing by a court having jurisdiction over such child for purposes of foster care placement shall be conducted on the record as provided in sections 43-283 and 43-284, and any recommendations of the office or designated local board concerning such child shall be admissible in such proceedings if such recommendations have been provided to all other parties of record. The court shall review a case on the record more often than every six months and at any time following the original placement of the child if the office or local board requests a hearing in writing specifying the reasons for the review. Members of the office or local board or its designated representative may attend and be heard at any hearing conducted under this section and may participate through counsel at the hearing with the right to call and cross-examine witnesses and present arguments to the court.

Source:Laws 1982, LB 714, § 13; Laws 1990, LB 1222, § 10; Laws 2012, LB998, § 12; Laws 2015, LB265, § 13.

43-1314. Court review or hearing; right to participate; notice.

(1) Except as otherwise provided in the Nebraska Indian Child Welfare Act, notice of the court review or hearing and the right of participation in all court reviews and hearings pertaining to a child in a foster care placement shall be provided by the court having jurisdiction over such child for the purposes of foster care placement. The Department of Health and Human Services or contract agency shall have the contact information for all child placements available for all courts to comply with the notification requirements found in this section. The department or contract agency shall each have one telephone number by which any court seeking to provide notice may obtain up-to-date contact information of all persons listed in subdivisions (2)(a) through (h) of this section. All contact information shall be up-to-date within seventy-two hours of any placement change.

(2) Notice shall be provided to all of the following parties that are applicable to the case: (a) The person charged with the care of such child; (b) the child's parents or guardian unless the parental rights of the parents have been terminated by court action as provided in section 43-292 or 43-297; (c) the foster child if age fourteen or over; (d) the foster parent or parents of the foster child; (e) the guardian ad litem of the foster child; (f) the office and designated local board; (g) the preadoptive parent; and (h) the relative providing care for the child. Notice of all court reviews and hearings shall be mailed or personally delivered to the counsel or party, if the party is not represented by counsel, five full days prior to the review or hearing. The use of ordinary mail shall constitute sufficient compliance. Notice to the foster parent, preadoptive parent, or relative providing care shall not be construed to require that such foster parent, preadoptive parent, or relative is a necessary party to the review or hearing.

(3) The court shall inquire into the well-being of the foster child by asking questions, if present at the hearing, of any willing foster parent, preadoptive parent, or relative providing care for the child.

Source:Laws 1982, LB 714, § 14; Laws 1985, LB 255, § 43; Laws 1988, LB 948, § 1; Laws 1990, LB 1222, § 11; Laws 1998, LB 1041, § 41; Laws 2006, LB 1115, § 34; Laws 2011, LB648, § 2; Laws 2012, LB998, § 13.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Annotations

Under this section, a preadoptive parent in a dependency proceeding is a foster parent whom a juvenile court has approved for a future adoption because a child's parent has surrendered his or her parental rights, a court-approved permanency plan does not call for the child's reunification with his or her parent, or the parents' parental rights have been or will be terminated. In re Interest of Nizigiyimana R., 295 Neb. 324, 889 N.W.2d 362 (2016).

A foster parent has the right to participate under this section whether or not the foster parent is a party in the juvenile case. In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413 (2015).

A foster parent's right to participate under this section does not extend to discovery, questioning, cross-examining, or calling witnesses beyond what is personally applicable to the foster parent's own qualifications. In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413 (2015).

A foster parent does not have an interest in the placement of an adjudicated child sufficient to warrant intervention in juvenile proceedings as a matter of right, but is entitled to notice and an opportunity to participate in all court reviews pertaining to a child in foster care placement. In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002).

Under this section and section 43-285, foster parents have standing to participate in foster care placement review hearings. In re Interest of Jorius G. & Cheralee G., 249 Neb. 892, 546 N.W.2d 796 (1996).

43-1314.01. Six-month case reviews; office; duties.

(1) The office shall be the only entity responsible for the conduct of periodic foster care file audit case reviews which shall be identified as reviews which meet the federal requirements for six-month case reviews pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272. The office shall be fiscally responsible for any noncompliance sanctions imposed by the federal government related to the requirements for review outlined in the federal Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272.

(2) It is the intent of the Legislature that any six-month court review of a juvenile pursuant to sections 43-278 and 43-1313 shall be identified as a review which meets the federal requirements for six-month case reviews pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272.

(3) The office may assist the Department of Health and Human Services as to eligibility under Title IV-E for state wards and eligibility for Supplemental Security Income, Supplemental Security Disability Income, Veterans Administration, or aid to families with dependent children benefits, for child support orders of the court, and for medical insurance other than medicaid.

Source:Laws 1996, LB 642, § 1; Laws 1997, LB 307, § 76; Laws 1999, LB 240, § 4; Laws 2012, LB998, § 14.

43-1314.02. Caregiver information form; development; provided to caregiver.

(1) The court shall provide a caregiver information form or directions on downloading such form from the Supreme Court Internet website to the foster parent, preadoptive parent, guardian, or relative providing care for the child when giving notice of a court review described in section 43-1314. The form is to be dated and signed by the caregiver and shall, at a minimum, request the following:

(a) The child's name, age, and date of birth;

(b) The name of the caregiver, his or her telephone number and address, and whether the caregiver is a foster parent, preadoptive parent, guardian, or relative;

(d) A current picture of the child;

(e) The current status of the child's medical, dental, and general physical condition;

(f) The current status of the child's emotional condition;

(g) The current status of the child's education;

(h) Whether or not the child is a special education student and the date of the last individualized educational plan;

(i) A brief description of the child's social skills and peer relationships;

(j) A brief description of the child's special interests and activities;

(k) A brief description of the child's reactions before, during, and after visits;

(l) Whether or not the child is receiving all necessary services;

(m) The date and place of each visit by the caseworker with the child;

(n) A description of the method by which the guardian ad litem has acquired information about the child; and

(o) Whether or not the caregiver can make a permanent commitment to the child if the child does not return home.

(2) A caregiver information form shall be developed by the Supreme Court. Such form shall be made a part of the record in each court that reviews the child's foster care proceedings.

Source:Laws 2007, LB457, § 1; Laws 2009, LB35, § 28.

43-1315. Status and permanency plan review; placement order.

In reviewing the foster care status and permanency plan of a child and in determining its order for disposition, the court shall continue placement outside the home upon a written determination that return of the child to his or her home would be contrary to the welfare of such child and that reasonable efforts to preserve and reunify the family, if required under section 43-283.01, have been made. In making this determination, the court shall consider the goals of the foster care placement and the safety and appropriateness of the foster care plan or permanency plan established pursuant to section 43-1312.

Source:Laws 1982, LB 714, § 15; Laws 1987, LB 635, § 4; Laws 1998, LB 1041, § 42.

Annotations

The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to section 43-254, (3) when the court reviews a juvenile's status and permanency planning pursuant to this section, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of section 43-292. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

This section only applies to situations where the foster care status of a child is being reviewed, not all orders which are dispositional in nature. In re Interest of Gloria F., 254 Neb. 531, 577 N.W.2d 296 (1998).

43-1316. Status review; child's needs; determination.

The court shall, when reviewing the foster care status of a child, determine whether the individual physical, psychological, and sociological needs of the child are being met. The health and safety of the child are of paramount concern in such review.

Source:Laws 1982, LB 714, § 16; Laws 1998, LB 1041, § 43.

43-1317. Training for local board members.

The office shall establish compulsory training for local board members which shall consist of initial training programs followed by periodic inservice training programs.

Source:Laws 1982, LB 714, § 17; Laws 2012, LB998, § 15.

43-1318. Act, how cited.

Sections 43-1301 to 43-1321 shall be known and may be cited as the Foster Care Review Act.

Source:Laws 1982, LB 714, § 18; Laws 1996, LB 642, § 2; Laws 1998, LB 1041, § 44; Laws 2007, LB457, § 2; Laws 2011, LB177, § 9; Laws 2014, LB908, § 7; Laws 2015, LB265, § 15; Laws 2017, LB225, § 6.

43-1319. Funds of Department of Health and Human Services; use.

Funds of the Department of Health and Human Services shall be used to defray the reasonable expenses incurred in the recruitment, training, and recognition of foster care providers and volunteers, including expenses incurred for community forums, public information sessions, and similar administrative functions.

Source:Laws 1990, LB 1222, § 14; Laws 1996, LB 1044, § 199.

43-1320. Foster parents; liability protection; Foster Parent Liability and Property Damage Fund; created; use; investment; unreimbursed liability and damage; claim.

(1) The Legislature finds and declares that foster parents are a valuable resource providing an important service to the citizens of Nebraska. The Legislature recognizes that the current insurance crisis has adversely affected some foster parents in several ways. Foster parents have been unable to obtain liability insurance coverage over and above homeowner's or tenant's coverage for actions filed against them by the foster child, the child's parents, or the child's legal guardian. In addition, the monthly payment made to foster parents is not sufficient to cover the cost of obtaining extended coverage and there is no mechanism in place by which foster parents can recapture the cost. Foster parents' personal resources are at risk, and therefor the Legislature desires to provide relief to address these problems.

(2) The Department of Health and Human Services shall provide for self-insuring the foster parent program pursuant to section 81-8,239.01 or shall provide and pay for liability and property damage insurance for participants in a family foster parent program who have been licensed or approved to provide care or who have been licensed or approved by a legally established Indian tribal council operating within the state to provide care.

(3) There is hereby created the Foster Parent Liability and Property Damage Fund. The fund shall be administered by the Department of Health and Human Services and shall be used to provide funding for self-insuring the foster parent program pursuant to section 81-8,239.01 or to purchase any liability and property damage insurance policy provided pursuant to subsection (2) of this section and reimburse foster parents for unreimbursed liability and property damage incurred or caused by a foster child as the result of acts covered by the insurance policy. Claims for unreimbursed liability and property damage incurred or caused by a foster child may be submitted in the manner provided in the State Miscellaneous Claims Act. Each claim shall be limited to the amount of any deductible applicable to the insurance policy provided pursuant to subsection (2) of this section, and there may be a fifty-dollar deductible payable by the foster parent per claim. The department shall adopt and promulgate rules and regulations to carry out this section. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1992, LB 169, § 2; Laws 1994, LB 1066, § 27; Laws 1996, LB 1044, § 200; Laws 1998, LB 1073, § 30; Laws 2007, LB296, § 127.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

State Miscellaneous Claims Act, see section 81-8,294.

43-1321. Foster Care Review Office Cash Fund; created; use; investment.

There is hereby created the Foster Care Review Office Cash Fund. The fund shall be administered by the Foster Care Review Office. The office shall remit revenue from the following sources to the State Treasurer for credit to the fund:

(1) Registration and other fees received for training, seminars, or conferences fully or partially sponsored or hosted by the office;

(2) Payments to offset printing, postage, and other expenses for books, documents, or other materials printed or published by the office; and

(3) Money received by the office as gifts, grants, reimbursements, or appropriations from any source intended for the purposes of the fund.

The fund shall be used for the administration of the Foster Care Review Office. The State Treasurer shall transfer any funds in the Foster Care Review Board Cash Fund on July 1, 2012, to the Foster Care Review Office Cash Fund. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1994, LB 1194, § 9; Laws 1995, LB 7, § 38; Laws 2012, LB998, § 16.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-1322. Repealed. Laws 2017, LB225, § 20.

43-1401. Terms, defined.

For purposes of sections 43-1401 to 43-1418:

(1) Child shall mean a child under the age of eighteen years born out of wedlock;

(2) Child born out of wedlock shall mean a child whose parents were not married to each other at the time of its birth, except that a child shall not be considered as born out of wedlock if its parents were married at the time of its conception but divorced at the time of its birth. The definition of legitimacy or illegitimacy for other purposes shall not be affected by the provisions of such sections; and

(3) Support shall include reasonable education.

Source:Laws 1941, c. 81, § 1, p. 322; C.S.Supp.,1941, § 43-701; R.S.1943, § 13-101; R.S.1943, (1983), § 13-101; Laws 1994, LB 1224, § 55.

Annotations

Since the child was conceived while the parties were still married, it was improper to bring a paternity action rather than an action to amend the dissolution decree in order to secure support from the father. State ex rel. Storz v. Storz, 235 Neb. 368, 455 N.W.2d 182 (1990).

In a proceeding under Chapter 13 (transferred to Chapter 43, article 14), the district court can modify the amount of a child support award if there is a change of circumstances. In a filiation proceeding under Chapter 13 (transferred to Chapter 43, article 14), an award of attorney fees is not allowed. State ex rel. Toledo v. Bockmann, 218 Neb. 428, 355 N.W.2d 521 (1984).

Married woman may be mother of child born out of wedlock. Gomez v. State ex rel. Larez, 157 Neb. 738, 61 N.W.2d 345 (1953).

1941 act sustained as constitutional. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

In the absence of a statute, a cause of action for the support of a child born out of wedlock does not survive against the personal representative of the alleged father. Carlson v. Bartels, 143 Neb. 680, 10 N.W.2d 671 (1941).

43-1402. Child support; liability of parents.

The father of a child whose paternity is established either by judicial proceedings or by acknowledgment as hereinafter provided shall be liable for its support to the same extent and in the same manner as the father of a child born in lawful wedlock is liable for its support. The mother of a child shall also be liable for its support. The liability of each parent may be determined, enforced, and discharged in accordance with the methods hereinafter provided.

Source:Laws 1941, c. 81, § 2, p. 322; C.S.Supp.,1941, § 43-702; R.S.1943, § 13-102; R.S.1943, (1983), § 13-102.

Annotations

1. Marital status at birth

2. Miscellaneous

1. Marital status at birth

When an acknowledgment of paternity has been executed by the parties, the district court has the inherent authority to consider the issue of child custody, and this section authorizes the filing of an action for child custody and support. Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).

A child born out of wedlock is entitled to child support retroactively to the date of birth because it is upon the child's birth that the parental duty of support commences. The same is true for a child born in wedlock, and such duty toward a minor child does not terminate upon divorce. At divorce, the duty of support is merely quantified. Willers ex rel. Powell v. Willers, 255 Neb. 769, 587 N.W.2d 390 (1998).

A parent has the duty to support a child, and a child born out of wedlock is entitled to support from the father to the same extent and in the same manner as a child born in wedlock. The duty to support one's child begins at birth, and there is no rational basis to distinguish support obligations to a child based upon whether the parents married. In a paternity action, a child who was not supported by a parent is ordinarily entitled to an award of retroactive child support. Retroactive child support is ordinarily determined in accordance with the Nebraska Child Support Guidelines, and the $50 minimum monthly support is presumptively correct absent contrary evidence. Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d 312 (1995).

Child support obligations which are determined in a paternity action are to be reached in the same manner as cases of children born in lawful wedlock. Such determinations will not be reversed absent an abuse of discretion. State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994).

When paternity is legally established, there is no rational basis to distinguish the support obligations of a father to a child born out of wedlock from the support obligations of a father to a child born in wedlock, and an out-of-wedlock child should be entitled to support from its father from the time of birth. State on behalf of Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580 (1993).

Liability of father of child born out of wedlock to support the child is the same as that of the father of a child born in lawful wedlock. State ex rel. Stobel v. Stanek, 176 Neb. 100, 125 N.W.2d 107 (1963).

An out-of-wedlock child has the statutory right to be supported to the same extent and in the same manner as a child born in lawful wedlock; the resulting duty of a parent to provide such support may, under appropriate circumstances, require the award of retroactive child support. Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005).

2. Miscellaneous

Under this section, establishment of paternity by acknowledgment is the equivalent of establishment of paternity by a judicial proceeding. In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

Chapter 13 which provides for "Children Born Out of Wedlock" (transferred to Chapter 43, article 14) conflicts with the common law rule and must be strictly construed. Riederer v. Siciunas, 193 Neb. 580, 228 N.W.2d 283 (1975).

This section construed with section 42-364, authorizes court to modify amount of child support in paternity action in interests of children. Riederer v. Siciunas, 193 Neb. 580, 228 N.W.2d 283 (1975).

Child support determinations made concomitantly in a filiation proceeding are characterized as "equitable" proceedings. Dworak v. Fugit, 1 Neb. App. 332, 495 N.W.2d 47 (1992).

43-1403. Support by county; conditions.

In case of the neglect or inability of the parents, or either of them, to support a child, it shall be supported by the county chargeable therewith under the provisions of Chapter 68. Nothing in this section shall be construed to make a child ineligible to receive relief to which it might otherwise be entitled under any law enacted for the relief of children.

Source:Laws 1941, c. 81, § 3, p. 323; C.S.Supp.,1941, § 43-703; R.S.1943, § 13-103; R.S.1943, (1983), § 13-103.

43-1404. Child support; liability of parents; discharge.

The liability of the father or mother of a child for its support shall be discharged by compliance with the terms of a judicial decree for support or the terms of a judicially approved settlement or by the adoption of the child by some other person or persons.

Source:Laws 1941, c. 81, § 4, p. 323; C.S.Supp.,1941, § 43-704; R.S.1943, § 13-104; R.S.1943, (1983), § 13-104.

43-1405. Child support; liability of father; discharge by settlement; requirements.

A settlement provided for in section 43-1404 means a voluntary agreement between the father of the child and the mother or some person authorized to act in her behalf, or between the father and the next friend or guardian of the child, whereby the father promises to make adequate provision for the support of the child. In the event that such a settlement is made it shall be binding on all parties and shall bar all other remedies of the mother and child and the legal representatives of the child so long as it shall be performed by the father, if said settlement is approved by the court having jurisdiction to compel the support of the child. The court shall approve such settlement only if it shall find and determine that adequate provision is made for the support of the child and that the father shall have offered clear evidence of his willingness and ability to perform the agreement. The court, in its discretion, may require the father to furnish bond with proper sureties conditioned upon the performance of the settlement.

Source:Laws 1941, c. 81, § 5, p. 323; C.S.Supp.,1941, § 43-705; R.S.1943, § 13-105; R.S.1943, (1983), § 13-105.

43-1406. Determination of paternity by other state or Indian tribe; full faith and credit; legitimacy of child.

(1) A determination of paternity made by any other state or by an Indian tribe as defined in section 43-1503, whether established through voluntary acknowledgment, genetic testing, tribal law, or administrative or judicial processes, shall be given full faith and credit by this state.

(2) A child whose parents marry is legitimate.

Source:Laws 1941, c. 81, § 6, p. 323; C.S.Supp.,1941, § 43-706; R.S.1943, § 13-106; R.S.1943, (1983), § 13-106; Laws 1985, Second Spec. Sess., LB 7, § 74; Laws 1986, LB 79, § 1; Laws 1991, LB 457, § 15; Laws 1993, LB 500, § 53; Laws 1994, LB 1224, § 57; Laws 2015, LB566, § 3.

Annotations

It is not contrary to Nebraska's public policy to recognize an acknowledged father's parental rights under another state's statutes when a Nebraska court has recognized an acknowledged father's parental rights under Nebraska's statutes. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).

The Full Faith and Credit Clause requires states to give the same effect to a judgment in the forum state that it has in the state where the court rendered the judgment. This section extends that requirement for judgments to a sister state's paternity determination established through a voluntary acknowledgment. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016); In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

Whether a paternity acknowledgment in a sister state gives an acknowledged father the right to block an adoption in Nebraska depends upon whether the acknowledgment confers that right in the state where it was made. Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016); In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

A mother's authority to compel payment of retroactive child support in a paternity action rests upon the child's right to be supported by the father. Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d 312 (1995).

While the cost of caring for a child is an important consideration in determining child support, the father's ability to make the payments is equally important. Hanson v. Rockwell, 206 Neb. 299, 292 N.W.2d 786 (1980).

Action by father seeking legitimation is not authorized. Paltani v. Creel, 169 Neb. 591, 100 N.W.2d 736 (1960).

Paternity of a child born out of wedlock may be established by acknowledgment or by a judicial proceeding. Timmerman v. Timmerman. 163 Neb. 704, 81 N.W.2d 135 (1957).

On appeal, award will not be disturbed in absence of abuse of discretion. Race v. Mrsny, 155 Neb. 679, 53 N.W.2d 88 (1952).

Attorney fees and costs are recoverable in paternity and child support cases, and an award of such fees and costs will be upheld on appeal absent an abuse of discretion. Both parents of a minor child born out of wedlock have a duty to financially support the child, including payment of costs for health care which are unreimbursed by insurance or other sources. Morrill County on Behalf of Cahoy v. Darsaklis, 7 Neb. App. 489, 584 N.W.2d 36 (1998).

Child support determinations made concomitantly in a filiation proceeding are characterized as "equitable" proceedings. Dworak v. Fugit, 1 Neb. App. 332, 495 N.W.2d 47 (1992).

43-1407. Expenses of mother; liability of father; enforcement; payment by medical assistance program; recovery; procedure.

(1) The father of a child shall also be liable for the reasonable expenses of (a) the child that are associated with the birth of the child and (b) the mother of such child during the period of her pregnancy, confinement, and recovery. Such liability shall be determined and enforced in the same manner as the liability of the father for the support of the child.

(2) In cases in which any medical expenses associated with the birth of the child and the mother of such child during the period of her pregnancy, confinement, and recovery are paid by the medical assistance program, the county attorney or authorized attorney, as defined in section 43-1704, may petition the court for a judgment for all or a portion of the reasonable medical expenses paid by the medical assistance program. Any medical expenses associated with the birth of such child and the mother of such child during the period of her pregnancy, confinement, and recovery that are approved and paid by the medical assistance program shall be presumed to be medically reasonable. If the father challenges any such expenses as not medically reasonable, he has the burden of proving that such expenses were not medically reasonable.

(3) A civil proceeding to recover medical expenses pursuant to this section may be instituted within four years after the child's birth. Summons shall issue and be served as in other civil proceedings, except that such summons may be directed to the sheriff of any county in the state and may be served in any county.

Source:Laws 1941, c. 81, § 7, p. 324; C.S.Supp.,1941, § 43-707; R.S.1943, § 13-107; R.S.1943, (1983), § 13-107; Laws 2007, LB554, § 43.

43-1408. Repealed. Laws 1991, LB 457, § 47.

43-1408.01. Notarized acknowledgment of paternity; execution by alleged father; form; filing with Department of Health and Human Services; payment.

(1) During the period immediately before or after the in-hospital birth of a child whose mother was not married at the time of either conception or birth of the child or at any time between conception and birth of the child, the person in charge of such hospital or his or her designated representative shall provide to the child's mother and alleged father, if the alleged father is readily identifiable and available, the documents and written instructions for such mother and father to complete a notarized acknowledgment of paternity. Such acknowledgment, if signed by both parties and notarized, shall be filed with the Department of Health and Human Services at the same time at which the certificate of live birth is filed.

Nothing in this section shall be deemed to require the person in charge of such hospital or his or her designee to seek out or otherwise locate an alleged father who is not readily identifiable or available.

(2) The acknowledgment shall be executed on a form prepared by the department. Such form shall be in essentially the same form provided by the department and used for obtaining signatures required by section 71-640.02. The acknowledgment shall include, but not be limited to, (a) a statement by the mother consenting to the acknowledgment of paternity and a statement that the alleged father is the biological father of the child, (b) a statement by the alleged father that he is the biological father of the child, (c) written information regarding parental rights and responsibilities, and (d) the social security numbers of the parents.

(3) The form provided for in subsection (2) of this section shall also contain instructions for completion and filing with the department if it is not completed and filed with a birth certificate as provided in subsection (1) of this section.

(4) The department shall accept completed acknowledgment forms and make available to county attorneys or authorized attorneys a record of acknowledgments it has received, as provided in subsection (1) of section 71-612. The department may prepare photographic, electronic, or other reproductions of acknowledgments. Such reproductions, when certified and approved by the department, shall be accepted as the original records, and the documents from which permanent reproductions have been made may be disposed of as provided by rules and regulations of the department.

(5) The department may by regulation establish a nominal payment and procedure for payment by the department for each acknowledgment filed with the department. The amount of such payments and the entities receiving such payments shall be within the limits allowed by Title IV-D of the federal Social Security Act, as amended.

Source:Laws 1994, LB 1224, § 56; Laws 1996, LB 1044, § 201; Laws 1997, LB 307, § 77; Laws 1997, LB 752, § 100; Laws 2007, LB296, § 128.

43-1409. Notarized acknowledgment of paternity; rebuttable presumption; admissibility; rescission.

The signing of a notarized acknowledgment, whether under section 43-1408.01 or otherwise, by the alleged father shall create a rebuttable presumption of paternity as against the alleged father. The signed, notarized acknowledgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order in which the signatory is a party. After the rescission period a signed, notarized acknowledgment is considered a legal finding which may be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the challenger, and the legal responsibilities, including the child support obligation, of any signatory arising from the acknowledgment shall not be suspended during the challenge, except for good cause shown. Such a signed and notarized acknowledgment or a certified copy or certified reproduction thereof shall be admissible in evidence in any proceeding to establish support.

Source:Laws 1941, c. 81, § 9, p. 324; C.S.Supp.,1941, § 43-709; R.S.1943, § 13-109; R.S.1943, (1983), § 13-109; Laws 1994, LB 1224, § 58; Laws 1997, LB 752, § 101; Laws 1999, LB 594, § 21.

Annotations

1. Acknowledgment

2. Miscellaneous

1. Acknowledgment

A father whose paternity is established by a final, voluntary acknowledgment has the same right to seek custody as the child's biological mother. Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).

A previous paternity determination, including a properly executed and undisturbed acknowledgment, must be set aside before a third party's paternity may be considered. Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020).

The proper legal effect of a signed, notarized acknowledgment of paternity is a finding that the individual who signed as the father is in fact the legal father. Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020).

In cases where a defendant has signed a notarized acknowledgment of paternity but properly challenges the acknowledgment, due process requires that an indigent defendant be furnished appointed counsel at public expense, even if the case was not commenced as a paternity case. State on behalf of Mia G. v. Julio G., 303 Neb. 207, 927 N.W.2d 817 (2019).

Where the notarized acknowledgment of paternity establishing the appellant as the child’s legal father was set aside as fraudulent and the evidence conclusively established that the appellant was not the child’s biological father, the juvenile court did not err in excluding the appellant from the juvenile proceedings. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013).

The provision in this section that the acknowledgment of paternity is a "legal finding" means that it legally establishes paternity in the person named in the acknowledgment as the father. Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).

In a filiation proceeding for support of a child born out of wedlock, evidence of the performance of acts described in this statute is not conclusive on the trier of fact, but constitutes relevant evidence of a biological relationship. State on behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165 (1992).

Furnishing of support was an acknowledgment of paternity. Morimoto v. Nebraska Children's Home Society, 175 Neb. 174, 121 N.W.2d 26 (1963).

While a genetic test result may be evidence of paternity and can establish a rebuttable presumption of paternity under section 43-1415, it is not in itself a legal determination of paternity in the same way as a signed and notarized acknowledgment of paternity may be under this section; as such, the four-year statute of limitations set forth in section 43-1411 applies to an action to establish paternity using genetic test results. Evan S. v. Laura H., 31 Neb. App. 750, 990 N.W.2d 27 (2023).

2. Miscellaneous

This section provides that one's conduct may indicate or be evidence of paternity. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985).

Where parents of a child born out of wedlock subsequently marry, that child is legitimate. Farmer v. Farmer, 200 Neb. 308, 263 N.W.2d 664 (1978).

A child born out of wedlock living with deceased workman at time of his death was entitled to benefits under Workmen's Compensation Act. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

This section defines what may be regarded as satisfactory proof in a paternity action. Timmerman v. Timmerman, 163 Neb. 704, 81 N.W.2d 135 (1957).

43-1410. Child support; decree or approved settlement; effect after death of parent.

Any judicially approved settlement or order of support made by a court having jurisdiction in the premises shall be binding on the legal representatives of the father or mother in the event of his or her death, to the same extent as other contractual obligations and judicial judgments or decrees.

Source:Laws 1941, c. 81, § 10, p. 325; C.S.Supp.,1941, § 43-710; R.S.1943, § 13-110; R.S.1943, (1983), § 13-110.

43-1411. Paternity; action to establish; venue; limitation; summons; person claiming to be biological father; action to establish; genetic testing.

(1) A civil proceeding to establish the paternity of a child may be instituted, in the court of the district where the child is domiciled or found or, for cases under the Uniform Interstate Family Support Act, where the alleged father is domiciled, by:

(a) The mother or the alleged father of such child, either during pregnancy or within four years after the child's birth, unless:

(i) A valid consent or relinquishment has been made pursuant to sections 43-104.08 to 43-104.24 or section 43-105 for purposes of adoption; or

(ii) A county court or separate juvenile court has jurisdiction over the custody of the child or jurisdiction over an adoption matter with respect to such child pursuant to sections 43-101 to 43-116; or

(b) The guardian or next friend of such child or the state, either during pregnancy or within eighteen years after the child's birth.

(2) Summons shall issue and be served as in other civil proceedings, except that such summons may be directed to the sheriff of any county in the state and may be served in any county.

(3) Notwithstanding any other provision of law, a person claiming to be the biological father of a child over which the juvenile court already has jurisdiction may file a complaint to intervene in such juvenile proceeding to institute an action to establish the paternity of the child. The complaint to intervene shall be accompanied by an affidavit under oath that the affiant believes he is the biological father of the juvenile. No filing fee shall be charged for filing the complaint and affidavit. Upon filing of the complaint and affidavit, the juvenile court shall enter an order pursuant to section 43-1414 to require genetic testing and to require the juvenile to be made available for genetic testing. The costs of genetic testing shall be paid by the intervenor, the county, or the state at the discretion of the juvenile court. This subsection does not authorize intervention by a person whose parental rights to such child have been terminated by the order of any court of competent jurisdiction.

Source:Laws 1941, c. 81, § 11, p. 325; C.S.Supp.,1941, § 43-711; R.S.1943, § 13-111; R.S.1943, (1983), § 13-111; Laws 1985, Second Spec. Sess., LB 7, § 75; Laws 1986, LB 813, § 1; Laws 1991, LB 457, § 16; Laws 1993, LB 500, § 54; Laws 1994, LB 1224, § 59; Laws 1995, LB 712, § 29; Laws 1998, LB 1041, § 45; Laws 2007, LB247, § 22; Laws 2020, LB93, § 1; Laws 2022, LB741, § 33.

Cross References

Uniform Interstate Family Support Act, see section 42-701.

Annotations

1. Constitutionality

2. Next friend

3. Miscellaneous

1. Constitutionality

This section does not violate the Equal Protection Clause because a mother can bring paternity actions on behalf of the child for up to 18 years, while fathers have only 4 years to bring paternity actions; this section treats mothers and putative fathers identically by imposing a 4-year limitations period on paternity actions brought by parents asserting their own rights. Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).

Actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth. Moreover, this preservation of a minor child's right to establish paternity does not violate either the U.S. or Nebraska constitutions. State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994).

2. Next friend

In the context of a paternity action, "next friend" is defined as "one who, in the absence of a guardian, acts for the benefit of an infant". Where a minor child lived with his mother and natural guardian, the court determined there was no legal basis, reason, or cause for a "next friend" to institute a paternity action on the minor child's behalf. Zoucha v. Henn, 258 Neb. 611, 604 N.W.2d 828 (2000).

A next friend is one who, in the absence of a guardian, acts for the benefit of an infant. State on behalf of B.A.T. v. S.K.D., 246 Neb. 616, 522 N.W.2d 393 (1994).

3. Miscellaneous

An alleged father may not institute a proceeding under this section to establish the paternity of a child born in wedlock. Chatterjee v. Chatterjee, 313 Neb. 710, 986 N.W.2d 283 (2023).

The 4-year statute of limitations on paternity actions does not bar an action for child custody and child support for a father who executed an acknowledgment of paternity. Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).

The definition of "child" in this section means a child under the age of 18 years born out of wedlock. State on behalf of Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020).

The State may not bring an action under this section to establish the paternity of a child born in wedlock. State on behalf of Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020).

An emotional bond with one's biological father is not the type of relationship contemplated by this section, nor is it the type of support with which the State has a reasonable interest. Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).

Father of child born out of wedlock may bring suit to determine paternity. White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987).

This section contains no limitation on a cause of action brought on behalf of a child to establish paternity and secure its rights. Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984).

Determination of paternity not barred by statute of limitations in action to modify divorce decree. Farmer v. Farmer, 200 Neb. 308, 263 N.W.2d 664 (1978).

Filiation proceeding is considered as civil in character. Lockman v. Fulton, 162 Neb. 439, 76 N.W.2d 452 (1956).

While a genetic test result may be evidence of paternity and can establish a rebuttable presumption of paternity under section 43-1415, it is not in itself a legal determination of paternity in the same way as a signed and notarized acknowledgment of paternity may be under section 43-1409; as such, the four-year statute of limitations set forth in this section applies to an action to establish paternity using genetic test results. Evan S. v. Laura H., 31 Neb. App. 750, 990 N.W.2d 27 (2023).

A guardian, next friend of the child, or the State is authorized to bring a paternity action on behalf of a child under subsection (2) of this section within 18 years after the child's birth. This section does not extend the statute of limitations for anyone other than the minor child involved. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).

In an action filed by the State under this section, the minor child is the real party in interest, and the State is authorized by statute to bring the action on the child's behalf. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).

Pursuant to this section, the State, in its parens patriae role, may bring a paternity action on behalf of a minor child for future support. The State's right to sue under this section is not conditioned upon the payment of public assistance benefits for the minor child. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).

This section applies in proceedings that solely seek to establish the paternity of a child or parental support for a child, but not when custody and/or visitation of a child is at issue. Wolter v. Fortuna, 27 Neb. App. 166, 928 N.W.2d 416 (2019).

A biological parent is barred from bringing a paternity action as his or her child's next friend under subdivision (2) of this section when the parent fails to show that the child is without a guardian because the child is living with a biological parent. Tyler F. v. Sara P., 24 Neb. App. 370, 888 N.W.2d 537 (2016).

A parent's right to initiate paternity actions under this section is barred after 4 years, but actions brought by a guardian or next friend on behalf of children born out of wedlock may be brought within 18 years after the child's birth. Tyler F. v. Sara P., 24 Neb. App. 370, 888 N.W.2d 537 (2016).

43-1411.01. Paternity or parental support; jurisdiction; termination of parental rights; provisions applicable.

(1) An action for paternity or parental support under sections 43-1401 to 43-1418 may be initiated by filing a complaint with the clerk of the district court as provided in section 25-2740. Such proceeding may be heard by the county court or the district court as provided in section 25-2740. A paternity determination under sections 43-1411 to 43-1418 may also be decided in a county court or separate juvenile court if the county court or separate juvenile court already has jurisdiction over the child whose paternity is to be determined.

(2) Whenever termination of parental rights is placed in issue in any case arising under sections 43-1401 to 43-1418, the Nebraska Juvenile Code and the Parenting Act shall apply to such proceedings.

(3) The court may stay the paternity action if there is a pending criminal allegation of sexual assault under section 28-319 or 28-320 or a law in another jurisdiction similar to either section 28-319 or 28-320 against the alleged father with regard to the conception of the child.

Source:Laws 1997, LB 229, § 38; Laws 1998, LB 1041, § 46; Laws 2004, LB 1207, § 40; Laws 2008, LB1014, § 46; Laws 2013, LB561, § 44; Laws 2017, LB289, § 20.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

Parenting Act, see section 43-2920.

43-1412. Paternity; action to establish; procedure; public hearings prohibited; evidence; default judgment; decree; payment of costs and fees.

(1) The method of trial shall be the same as that in other civil proceedings, except that the trial shall be by the court without a jury unless a jury is requested (a) by the alleged father, in a proceeding instituted by the mother or the guardian or next friend, or (b) by the mother, in a proceeding instituted by the alleged father. It being contrary to public policy that such proceedings should be open to the general public, no one but the parties, their counsel, and others having a legitimate interest in the controversy shall be admitted to the courtroom during the trial of the case. The alleged father and the mother shall be competent to testify. The uncorroborated testimony (i) of the mother, in a proceeding instituted by the mother or the guardian or next friend, or (ii) of the alleged father, in a proceeding instituted by the alleged father, shall not alone be sufficient to support a verdict or finding that the alleged father is actually the father. Refusal by the alleged father to comply with an order of the court for genetic testing shall be deemed corroboration of the allegation of paternity. A signed and notarized acknowledgment of paternity or a certified copy or certified reproduction thereof shall be admissible in evidence in any proceeding to establish paternity without the need for foundation testimony or other proof of authenticity or accuracy.

If it is determined in this proceeding that the alleged father is actually the father of the child, a judgment shall be entered declaring the alleged father to be the father of the child.

(2) A default judgment shall be entered upon a showing of service and failure of the defendant to answer or otherwise appear.

(3) If a judgment is entered under this section declaring the alleged father to be the father of the child, the court shall retain jurisdiction of the cause and enter such order of support, including the amount, if any, of any court costs and attorney's fees which the court in its discretion deems appropriate to be paid by the father, as may be proper under the procedure and in the manner specified in section 43-512.04. If it is not determined in the proceeding that the alleged father is actually the father of the child, the court shall, if it finds that the action was frivolous, award court costs and attorney's fees incurred by the alleged father, with such costs and fees to be paid by the plaintiff.

(4) All judgments under this section declaring the alleged father to be the father of the child shall include the father's social security number. The social security number of the declared father of the child shall be furnished to the clerk of the district court in a document accompanying the judgment.

Source:Laws 1941, c. 81, § 11, p. 325; C.S.Supp.,1941, § 43-711; R.S.1943, § 13-112; R.S.1943, (1983), § 13-112; Laws 1986, LB 79, § 2; Laws 1986, LB 813, § 2; Laws 1994, LB 1224, § 60; Laws 1997, LB 752, § 102; Laws 2004, LB 1207, § 41; Laws 2006, LB 1113, § 41.

Annotations

1. Jurisdiction

2. Burden of proof

3. Request for jury trial

4. Judicial determination of paternity - proceeding

5. Corroboration of testimony

6. Attorney's fees and costs

7. Miscellaneous

1. Jurisdiction

Paternity statutes cannot circumscribe the district court’s inherent equitable power to determine child custody. Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).

A district court retains jurisdiction for orders regarding child support notwithstanding the fact that a paternity determination is on appeal. State on Behalf of Joseph F. v. Rial, 251 Neb. 1, 554 N.W.2d 769 (1996).

2. Burden of proof

In a civil action, only a preponderance of the evidence is necessary to sustain the establishment of paternity. State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995).

In a paternity proceeding, only a preponderance of evidence is necessary to sustain a verdict. Snay v. Snarr, 195 Neb. 375, 238 N.W.2d 234 (1976).

3. Request for jury trial

This section authorizes a plaintiff claiming to be the father of a child born out of wedlock to request a jury trial if he so desires. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985).

Jury trial may be obtained if requested by any putative father who is made defendant in any proceedings under 1941 act. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

4. Judicial determination of paternity - proceeding

In filiation proceedings, only a preponderance of the evidence is necessary to sustain establishment of paternity. In filiation proceedings tried to the trial court without a jury, findings of the trial court have the same effect as a jury verdict, and such findings will not be disturbed unless clearly wrong. The corroboration of testimony required in filiation proceedings may consist of circumstantial evidence. Gregory v. Davis, 214 Neb. 408, 334 N.W.2d 1 (1983).

In a proceeding to determine paternity of a child under the provisions of sections 13-101 to 13-112 (transferred to Chapter 43, article 14) the mother is a competent witness on the issue of the child's paternity. Roebuck v. Fraedrich, 201 Neb. 413, 267 N.W.2d 759 (1978).

If the mother brings the paternity action within 4 years of the child's birth, she need not bring such action on behalf of the child and the court may award retroactive support. Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005).

Relevant evidence of paternity includes evidence of sexual intercourse between the mother and alleged father at any possible time of conception and the results of blood testing. Corroboration means independent evidence which tends to strengthen or otherwise to confirm the testimony of the mother of the child whose paternity is in issue. State on behalf of Cooper v. Harmon, 2 Neb. App. 612, 512 N.W.2d 656 (1994).

A "frivolous paternity proceeding" means a paternity suit brought for an improper motive or premised upon a legal position so wholly without merit as to be without rational argument in the law or evidence. State ex rel. Mooney v. Duer, 1 Neb. App. 84, 487 N.W.2d 575 (1992).

5. Corroboration of testimony

Corroboration of the mother's testimony that defendant is the father is sufficient, if she be corroborated as to material facts and circumstances which tend to support her testimony and from which, together with her testimony as to the principal act, the inference of guilt may be drawn. Wade v. Hicks, 191 Neb. 847, 218 N.W.2d 222 (1974).

Corroboration of complainant is required. Lockman v. Fulton, 162 Neb. 439, 76 N.W.2d 452 (1956).

Corroboration of mother is required. State ex rel. Klostermeier v. Klostermeier, 161 Neb. 247, 72 N.W.2d 848 (1955).

6. Attorney's fees and costs

Subsection (3) of this section specifically provides that attorney fees and costs are allowed in paternity and child support cases brought by a child's mother, father, or guardian or next friend, the county attorney, or another authorized attorney. To the extent State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), holds otherwise, it is overruled. Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).

Attorney fees and costs are statutorily allowed in paternity and child support cases. Coleman v. Kahler, 17 Neb. App. 518, 766 N.W.2d 142 (2009).

7. Miscellaneous

Retroactive support is included in the support that the trial court may order under subsection (3) of this section. State on behalf of Elijah K. v. Marceline K., 28 Neb. App. 772, 949 N.W.2d 531 (2020).

43-1412.01. Legal determination of paternity set aside; when; guardian ad litem; court orders.

An individual may file a complaint for relief and the court may set aside a final judgment, court order, administrative order, obligation to pay child support, or any other legal determination of paternity if a scientifically reliable genetic test performed in accordance with sections 43-1401 to 43-1418 establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The filing party shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending complaint for relief from a determination of paternity under this section, but only from the date that notice of the complaint was served on the nonfiling party. A court shall not grant relief from determination of paternity if the individual named as father (1) completed a notarized acknowledgment of paternity pursuant to section 43-1408.01, (2) adopted the child, or (3) knew that the child was conceived through artificial insemination.

Source:Laws 2008, LB1014, § 47.

Annotations

This section provides support for the conclusion that an acknowledgment legally establishes paternity and grants the individual named as the father the legal status of a parent to the child, regardless of genetic factors. Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020).

A properly executed acknowledgment of paternity cannot be set aside merely by DNA testing which later shows the identified individual is not the child's biological father. Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020).

The State is not an "individual" who may file a complaint to disestablish paternity under this section. State on behalf of Miah S. v. Ian K., 306 Neb. 372, 945 N.W.2d 178 (2020).

The disestablishment provisions of this section presuppose a legal determination of paternity and are not applicable until after a final judgment or other legal determination of paternity has been entered. Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017).

This section permits, but does not require, a court to set aside a child support obligation when paternity has been disestablished. It does not authorize any change in child support without such disestablishment of paternity. Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (2015).

The question of whether a paternity decree should be set aside must be determined under this section, applicable to setting aside a judgment of paternity, and not under the provisions of section 25-2001, applicable to vacating judgments in general. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).

This section gives the court discretion to determine whether disestablishment of paternity is appropriate in light of both the adjudicated father's interests and the best interests of the child, and should weigh factors such as (1) the child's age, (2) the length of time since the establishment of paternity, (3) the previous relationship between the child and the established father, and (4) the possibility that the child could benefit from establishing the child's actual paternity. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

This section is applicable to both adjudicated fathers who were married to the child's mother and those who were not. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

This section overrides res judicata principles and allows, in limited circumstances, an adjudicated father to disestablish a prior, final paternity determination based on genetic evidence that the adjudicated father is not the biological father. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

43-1413. Child born out of wedlock; term substituted for other terms.

In any local law, ordinance or resolution, or in any public or judicial proceeding, or in any process, notice, order, decree, judgment, record or other public document or paper, the terms bastard or illegitimate child shall not be used but the term child born out of wedlock shall be used in substitution therefor and with the same force and effect.

Source:Laws 1941, c. 81, § 14, p. 326; C.S.Supp.,1941, § 43-714; R.S.1943, § 13-115; R.S.1943, (1983), § 13-115.

43-1414. Genetic testing; procedure; confidentiality; violation; penalty.

(1) In any proceeding to establish paternity, the court may, on its own motion, or shall, on a timely request of a party, after notice and hearing, require the child, the mother, and the alleged father to submit to genetic testing to be performed on blood or any other appropriate genetic testing material. Failure to comply with such requirement for genetic testing shall constitute contempt and may be dealt with in the same manner as other contempts. If genetic testing is required, the court shall direct that inherited characteristics be determined by appropriate testing procedures and shall appoint an expert in genetic testing and qualified as an examiner of genetic markers to analyze and interpret the results and to report to the court. The court shall determine the number of experts required.

(2) In any proceeding to establish paternity, the Department of Health and Human Services, county attorneys, and authorized attorneys have the authority to require the child, the mother, and the alleged father to submit to genetic testing to be performed on blood or any other appropriate genetic testing material. All genetic testing shall be performed by a laboratory accredited by the College of American Pathologists or any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the college.

(3) Except as authorized under sections 43-1414 to 43-1418, a person shall not disclose information obtained from genetic paternity testing that is done pursuant to such sections.

(4) If an alleged father who is tested as part of an action under such sections is found to be the child's father, the testing laboratory shall retain the genetic testing material of the alleged father, mother, and child for no longer than the period of years prescribed by the national standards under which the laboratory is accredited. If a man is found not to be the child's father, the testing laboratory shall destroy the man's genetic testing material in the presence of a witness after such material is used in the paternity action. The witness may be an individual who is a party to the destruction of the genetic testing material. After the man's genetic testing material is destroyed, the testing laboratory shall make and keep a written record of the destruction and have the individual who witnessed the destruction sign the record. The testing laboratory shall also expunge its records regarding the genetic paternity testing performed on the genetic testing material in accordance with the national standards under which the laboratory is accredited. The testing laboratory shall retain the genetic testing material of the mother and child for no longer than the period of years prescribed by the national standards under which the laboratory is accredited. After a testing laboratory destroys an individual's genetic testing material as provided in this subsection, it shall notify the adult individual, or the parent or legal guardian of a minor individual, by certified mail that the genetic testing material was destroyed.

(5) A testing laboratory is required to protect the confidentiality of genetic testing material, except as required for a paternity determination. The court and its officers shall not use or disclose genetic testing material for a purpose other than the paternity determination.

(6) A person shall not buy, sell, transfer, or offer genetic testing material obtained under sections 43-1414 to 43-1418.

(7) A testing laboratory shall annually have an independent audit verifying the contracting laboratory's compliance with this section. The audit shall not disclose the names of, or otherwise identify, the test subjects required to submit to testing during the previous year. The testing laboratory shall forward the audit to the department.

(8) Any person convicted of violating this section shall be guilty of a Class IV misdemeanor for the first offense and a Class III misdemeanor for the second or subsequent offense.

(9) For purposes of sections 43-1414 to 43-1418, an expert in genetic testing means a person who has formal doctoral training or postdoctoral training in human genetics.

Source:Laws 1984, LB 845, § 1; Laws 1994, LB 1224, § 61; Laws 1997, LB 752, § 103; Laws 2001, LB 432, § 9; Laws 2007, LB296, § 129.

Cross References

Genetic testing, access to information, see section 43-3327.

Annotations

The Legislature's approval of genetic analysis is clearly aimed at diagnostic, rather than forensic, uses of DNA profiling. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

The purpose of this section is to make evidence from genetic testing available for use at trial. State v. Smith, 231 Neb. 740, 437 N.W.2d 803 (1989).

43-1415. Results of genetic tests; admissible evidence; rebuttable presumption.

(1) The results of the tests, including the statistical probability of paternity, shall be admissible evidence and, except as provided in subsection (2) of this section, shall be weighed along with other evidence of paternity.

(2) When the results of tests, whether or not such tests were ordered pursuant to section 43-1414, show a probability of paternity of ninety-nine percent or more, there shall exist a rebuttable presumption of paternity.

(3) Such evidence may be introduced by verified written report without the need for foundation testimony or other proof of authenticity or accuracy unless there is a timely written request for personal testimony of the expert at least thirty days prior to trial.

Source:Laws 1984, LB 845, § 2; Laws 1993, LB 500, § 55; Laws 1994, LB 1224, § 62.

Annotations

While a genetic test result may be evidence of paternity and can establish a rebuttable presumption of paternity under this section, it is not in itself a legal determination of paternity in the same way as a signed and notarized acknowledgment of paternity may be under section 43 1409; as such, the four-year statute of limitations set forth in section 43 1411 applies to an action to establish paternity using genetic test results. Evan S. v. Laura H., 31 Neb. App. 750, 990 N.W.2d 27 (2023).

When genetic tests show a probability of paternity of 99 percent or more, a rebuttable presumption is created without the need for any other evidence. State on behalf of Dady v. Snelling, 10 Neb. App. 740, 637 N.W.2d 906 (2001).

43-1416. Genetic tests; chain of custody; competent evidence.

The chain of custody of blood or tissue specimens shall be competent evidence and admissible by stipulation or by a verified written report, without the need for foundation testimony or other proof of authenticity, unless a timely written request for testimony is made at least thirty days prior to trial.

Source:Laws 1984, LB 845, § 3; Laws 1994, LB 1224, § 63.

43-1417. Additional genetic testing; when.

If the result of genetic testing or the expert's analysis of inherited characteristics is disputed, the court, upon reasonable request of a party, shall order that additional testing be done by the same laboratory or an independent laboratory at the expense of the party requesting additional testing.

Source:Laws 1984, LB 845, § 4.

43-1418. Genetic testing; costs.

In cases where the court orders genetic testing at the request of a party, the requesting party shall initially pay such expense. In cases where the court orders genetic testing in the absence of a request of any party, the assessment of the cost of such testing shall be determined by the court. Whenever the disputing party prevails, the costs shall be borne by the other party.

Source:Laws 1984, LB 845, § 5.

Annotations

It is within the discretion of the trial judge in a paternity action to determine costs if the disputing party loses. Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005).

43-1501. Act, how cited.

Sections 43-1501 to 43-1517 shall be known and may be cited as the Nebraska Indian Child Welfare Act.

Source:Laws 1985, LB 255, § 1; Laws 2015, LB566, § 4.

Annotations

The lower standard of proof under subsection (3) of section 43-279.01 for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006).

A party to a proceeding who seeks to invoke a provision of the Nebraska Indian Child Welfare Act has the burden to show that the act applies in the proceedings. In re Interest of A.M., C.M., and L.M., 235 Neb. 506, 455 N.W.2d 572 (1990).

43-1502. Purpose of act.

The purpose of the Nebraska Indian Child Welfare Act is to clarify state policies and procedures regarding the implementation by the State of Nebraska of the federal Indian Child Welfare Act. It shall be the policy of the state to cooperate fully with Indian tribes in Nebraska in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced. This cooperation includes recognition by the state that Indian tribes have a continuing and compelling governmental interest in an Indian child whether or not the Indian child is in the physical or legal custody of a parent, an Indian custodian, or an Indian extended family member at the commencement of an Indian child custody proceeding or the Indian child has resided or is domiciled on an Indian reservation. The state is committed to protecting the essential tribal relations and best interests of an Indian child by promoting practices consistent with the federal Indian Child Welfare Act and other applicable law designed to prevent the Indian child's voluntary or involuntary out-of-home placement.

Source:Laws 1985, LB 255, § 2; Laws 2015, LB566, § 5.

Annotations

43-1503. Terms, defined.

For purposes of the Nebraska Indian Child Welfare Act, except as may be specifically provided otherwise:

(1) Active efforts shall mean and include, but not be limited to:

(a) A concerted level of casework, both prior to and after the removal of an Indian child, exceeding the level that is required under reasonable efforts to preserve and reunify the family described in section 43-283.01 in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's tribe or tribes to the extent possible under the circumstances;

(b) A request to the Indian child's tribe or tribes and extended family known to the department or the state to convene traditional and customary support and services;

(c) Actively engaging, assisting, and monitoring the family's access to and progress in culturally appropriate and available resources of the Indian child's extended family members, tribal service area, Indian tribe or tribes, and individual Indian caregivers;

(d) Identification of and provision of information to the Indian child's extended family members known to the department or the state concerning appropriate community, state, and federal resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing such community, state, and federal resources;

(e) Identification of and attempts to engage tribally designated Nebraska Indian Child Welfare Act representatives;

(f) Consultation with extended family members known to the department or the state, or a tribally designated Nebraska Indian Child Welfare Act representative if an extended family member cannot be located, to identify family or tribal support services that could be provided by extended family members or other tribal members if extended family members cannot be located;

(g) Exhaustion of all available tribally appropriate family preservation alternatives; and

(h) When the department or the state is involved in a proceeding under the act, the department or the state shall provide a written report of its attempt to provide active efforts to the court at every hearing involving an Indian child. This report shall be sent to the Indian child's tribe or tribes within three days after being filed with the court and shall be deemed to be admissible evidence of active efforts in proceedings conducted under the act;

(2) Best interests of the Indian child shall include:

(a) Using practices in compliance with the federal Indian Child Welfare Act, the Nebraska Indian Child Welfare Act, and other applicable laws that are designed to prevent the Indian child's voluntary or involuntary out-of-home placement; and

(b) Whenever an out-of-home placement is necessary, placing the child, to the greatest extent possible, in a foster home, adoptive placement, or other type of custodial placement that reflects the unique values of the Indian child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child's tribe or tribes and tribal community;

(3) Child custody proceeding shall mean and include:

(a) Foster care placement which shall mean any action removing an Indian child from his or her parent or Indian custodian for temporary or emergency placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(b) Termination of parental rights which shall mean any action resulting in the termination of the parent-child relationship;

(c) Preadoptive placement which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement;

(d) Adoptive placement which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption; and

(e) Voluntary foster care placement which shall mean a non-court-involved proceeding in which the department or the state is facilitating a voluntary foster care placement or in-home services to families at risk of entering the foster care system. An Indian child, parent, or tribe involved in a voluntary foster care placement shall only be provided protections as provided in subsection (4) of section 43-1505 and sections 43-1506 and 43-1508.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents;

(4) The department or the state shall mean the applicable state social services entity that is involved with the provision of services to Indian children, specifically the Department of Health and Human Services and the Office of Probation Administration in certain cases;

(5) Extended family member shall be as defined by the law or custom of the Indian child's primary tribe or, in the absence of such laws or customs of the primary tribe, the law or custom of the Indian child's other tribes or, in the absence of such law or custom, shall mean a person who has reached the age of eighteen and who is the Indian child's parent, grandparent, aunt or uncle, clan member, band member, sibling, brother-in-law or sister-in-law, niece or nephew, cousin, or stepparent;

(6) Federal Indian Child Welfare Act shall mean the federal Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq.;

(7) Indian shall mean any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a regional corporation defined in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606;

(8) Indian child shall mean any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;

(9) Indian child's primary tribe shall mean, in the case of an Indian child that is a member or eligible for membership in multiple tribes, the tribe determined by the procedure enumerated in subsection (4) of section 43-1504;

(10) Indian child's tribe or tribes shall mean the Indian tribe or tribes in which an Indian child is a member or eligible for membership;

(11) Indian custodian shall mean any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;

(12) Indian organization shall mean any group, association, partnership, limited liability company, corporation, or other legal entity owned or controlled by Indians or a majority of whose members are Indians;

(13) Indian tribe shall mean any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary because of their status as Indians, including any Alaska Native village as defined in section 3(c) of the Alaska Native Claims Settlement Act, as amended, 43 U.S.C. 1602(c);

(14) Parent means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father when paternity has not been acknowledged or established;

(15) Qualified expert witness shall mean one of the following persons, in descending priority order although a court may assess the credibility of individual witnesses:

(a) A member of the Indian child's tribe or tribes who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family and childrearing practices;

(b) A member of another tribe who is recognized to be a qualified expert witness by the Indian child's tribe or tribes based on his or her knowledge of the delivery of child and family services to Indians and the Indian child's tribe or tribes;

(c) A lay expert witness that possesses substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe or tribes;

(d) A professional person having substantial education and experience in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices within the Indian child's tribe or tribes; or

(e) Any other professional person having substantial education in the area of his or her specialty;

(16) Reservation shall mean Indian country as defined in 18 U.S.C. 1151 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation or a federally designated or established service area which means a geographic area designated by the United States where federal services and benefits furnished to Indians and Indian tribes are provided or which is otherwise designated to constitute an area on or near a reservation;

(17) Secretary shall mean the Secretary of the United States Department of the Interior;

(18) Tribal court shall mean a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings; and

(19) Tribal service area shall mean a geographic area, as defined by the applicable Indian tribe or tribes, in which tribal services and programs are provided to Indians.

Source:Laws 1985, LB 255, § 3; Laws 1993, LB 121, § 216; Laws 1999, LB 475, § 3; Laws 2013, LB265, § 35; Laws 2015, LB566, § 6.

Annotations

A guardianship proceeding qualified as a "foster care placement" as defined by the federal Indian Child Welfare Act of 1978 and subdivision (3)(a) of this section, where the proceeding was initiated by a grandparent of an Indian child, and the object of the proceeding was to remove custody from the Indian child's parent and place custody with the Indian child's grandparent who would serve as guardian. In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).

There is no precise formula for active efforts; the active efforts standard requires a case-by-case analysis and should be judged by the individual circumstances. In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018).

At any point in an involuntary juvenile proceeding involving Indian children at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard of the Indian Child Welfare Act of 1978 and the Nebraska Indian Child Welfare Act applies in place of the reasonable efforts standard applicable in cases involving non-Indian children. In re Interest of Shayla H. et al., 289 Neb. 473, 855 N.W.2d 774 (2014).

The provisions of the Nebraska Indian Child Welfare Act apply prospectively from the date Indian child status is established on the record. In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).

Pursuant to subsection (4) of this section, a party to a proceeding who seeks to invoke a provision of the Indian Child Welfare Act has the burden to show that the act applies in the proceedings; for application of the act to proceedings for the termination of parental rights, the proceedings must involve an Indian child within the purview of the act. In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990).

43-1504. Custody proceeding; jurisdiction of tribe; transfer of proceedings; rights of tribe; tribal proceedings; effect.

(1) An Indian tribe shall have jurisdiction exclusive as to this state over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except when such jurisdiction is otherwise vested in the state by existing federal law. When an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

(2) In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the primary tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe, except that such transfer shall be subject to declination by the tribal court of the primary tribe.

(3) In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe or tribes shall have a right to intervene at any point in the proceeding regardless of whether the intervening party is represented by legal counsel. The Indian child's tribe or tribes and their counsel are not required to associate with local counsel or pay a fee to appear pro hac vice in a child custody proceeding under the Nebraska Indian Child Welfare Act. Representatives from the Indian child's tribe or tribes have the right to fully participate in every court proceeding held under the act.

(4) If the Indian child is eligible for membership or enrolled in multiple Indian tribes and more than one Indian tribe intervenes in a state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian child's primary tribe shall be determined in the following manner:

(a) The applicable Indian tribes shall enter into a unanimous agreement designating which Indian tribe is the Indian child's primary tribe for the underlying state court proceeding within thirty days after intervention by one or more additional Indian tribes, after consultation, if practicable, with the parents of the Indian child and with the Indian child if he or she is twelve years of age or older; or

(b) If unanimous agreement is not possible within the thirty-day period, the state court in which the proceeding is pending shall determine the Indian child's primary tribe based upon the amount and significance of the contacts between each Indian tribe and the Indian child.

(5) The State of Nebraska shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that the state gives full faith and credit to the public acts, records, and judicial proceedings of any other entity.

Source:Laws 1985, LB 255, § 4; Laws 2015, LB566, § 7.

Annotations

1. Good cause

2. Miscellaneous

1. Good cause

A determination that the proceeding is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court. In re Interest of Tavian B., 292 Neb. 804, 874 N.W.2d 456 (2016).

In determining whether a proceeding is at an advanced stage for purposes of the good cause analysis, a court must consider foster care placement and termination of parental rights to be separate proceedings. In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012).

The party opposing a transfer of jurisdiction to the tribal courts under the Indian Child Welfare Act has the burden of establishing that good cause not to transfer the matter exists. In re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

Under subsection (2) of this section, a motion to transfer a case to a tribal court was properly denied for good cause where the proceeding was at an advanced stage and the fact that cases involving some of the children were to remain in juvenile court was essentially a forum non conveniens matter. In re Interest of Leslie S. et al., 17 Neb. App. 828, 770 N.W.2d 678 (2009).

2. Miscellaneous

The applicability of the Nebraska Indian Child Welfare Act to an adoption proceeding turns not on the Indian status of the person who invoked the acts but on whether an "Indian child" is involved. In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).

A motion to transfer to tribal court was not made at an advanced stage of the termination of parental rights proceedings where a previous motion for termination was dismissed for failure to include the Nebraska Indian Child Welfare Act allegations; thus, the current motion for termination constituted a separate and distinct proceeding, and the motion to transfer was filed very shortly after the filing of the current motion for termination. In re Interest of Jayden D. & Dayten J., 21 Neb. App. 666, 842 N.W.2d 199 (2014).

A denial of a transfer to tribal court under the Indian Child Welfare Act is reviewed for an abuse of discretion. In re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

That a state court may take jurisdiction under the Indian Child Welfare Act does not necessarily mean that it should do so, because the court should consider the rights of the child, the rights of the tribe, and the conflict of law principles, and should balance the interests of the state and the tribe. In re Interest of Melaya F. & Melysse F., 19 Neb. App. 235, 810 N.W.2d 429 (2011); In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

Pursuant to subsection (2) of this section, if the tribe or either parent of an Indian child petitions for transfer of the proceeding to the tribal court, the state court cannot proceed with the placement of the Indian child living outside a reservation without first determining whether jurisdiction of the matter should be transferred to the tribe. In re Interest of Lawrence H., 16 Neb. App. 246, 743 N.W.2d 91 (2007).

Absent conclusive evidence that an Indian child is a ward of a tribal court or residing within the reservation of a tribe, a juvenile court may properly exercise jurisdiction over an Indian child under this section. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006).

The denial of a motion to transfer jurisdiction of a juvenile court proceeding to tribal court is an order made in a special proceeding that affects a substantial right and is a final, appealable order. In re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005).

43-1505. Foster care placement; termination of parental rights; procedures; rights.

(1) In any involuntary proceeding in a state court, when the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall send a notice conforming to the requirements of 25 C.F.R. 23.11 to the parents, the Indian custodian, and the Indian child's tribe or tribes, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe or tribes cannot be determined, such notice shall be given to the secretary in like manner, who may provide the requisite notice to the parent or Indian custodian and the tribe or tribes. No foster care placement or termination of parental rights proceedings shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or tribes or the secretary. The parent or Indian custodian or the tribe or tribes shall, upon request, be granted up to twenty additional days to prepare for such proceeding.

(2) In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interests of the Indian child. When state law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the secretary upon appointment of counsel and request from the secretary, upon certification of the presiding judge, payment of reasonable attorney's fees out of funds which may be appropriated.

(3) Each party to a foster care placement or termination of parental rights proceeding under state law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.

(4) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family or unite the parent or Indian custodian with the Indian child and that these efforts have proved unsuccessful. Any written evidence showing that active efforts have been made shall be admissible in a proceeding under the Nebraska Indian Child Welfare Act. Prior to the court ordering placement of the child in foster care or the termination of parental rights, the court shall make a determination that active efforts have been provided or that the party seeking placement or termination has demonstrated that attempts were made to provide active efforts to the extent possible under the circumstances.

(5) The court shall not order foster care placement under this section in the absence of a determination by the court, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(6) The court shall not order termination of parental rights under this section in the absence of a determination by the court, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Source:Laws 1985, LB 255, § 5; Laws 1987, LB 93, § 11; Laws 2015, LB566, § 8.

Annotations

1. Burden of proof

2. Active efforts

3. Termination of parental rights

4. Miscellaneous

1. Burden of proof

The "beyond a reasonable doubt" standard in subsection (6) of this section does not extend to the best interests element in section 43-292. Instead, the State must prove by clear and convincing evidence that terminating parental rights is in the child's best interests; this need not include testimony of a qualified expert witness. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

In adjudication cases, the standard of proof for the active efforts element in subsection (4) of this section is proof by a preponderance of the evidence. In re Interest of Mischa S., 22 Neb. App. 105, 847 N.W.2d 749 (2014)

Under this section, a determination to terminate parental rights must be supported by evidence beyond a reasonable doubt, which is proof so convincing that one would rely and act upon it without hesitation in the more serious and important transactions of life. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).

2. Active efforts

A judicial determination in an adjudication order that the State satisfied the active efforts requirement contained in subsection (4) of this section affects the substantial right of parents to raise their children, and is therefore a final, appealable order. In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).

The "active efforts" standard in subsection (4) of this section requires more than the "reasonable efforts" standard that applies in cases not involving the Indian Child Welfare Act. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); In re Interest of Shayla H. et al., 22 Neb. App. 1, 846 N.W.2d 668 (2014).

The "active efforts" standard in subsection (4) of this section requires proof by clear and convincing evidence in parental rights termination cases. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

There is no precise formula for the "active efforts" standard in subsection (4) of this section; instead, the standard requires a case-by-case analysis. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

In a foster care placement determination involving an Indian child, the failure to make findings under subsection (4) of this section is harmless error where a de novo review indicates that evidence supports these findings. In re Interest of Mischa S., 22 Neb. App. 105, 847 N.W.2d 749 (2014).

Pursuant to subsection (4) of this section, although the State should make active efforts in a termination of parental rights proceeding under the Indian Child Welfare Act, if further efforts would be futile, the requirement of active efforts is satisfied. In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009).

Pursuant to subsection (4) of this section, in a termination of parental rights proceeding under the Indian Child Welfare Act, the notion of culturally relevant active efforts applies to the parents, to the children, and to the family. In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009).

Pursuant to subsection (4) of this section, the Indian Child Welfare Act's requirement of "active efforts" requires more than the "reasonable efforts" standard applicable in non-Indian Child Welfare Act cases and at least some efforts should be culturally relevant. In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009).

Pursuant to subsection (4) of this section, in a foster care placement determination involving an Indian child, the failure to make an "active efforts" finding is harmless error where a de novo review indicates that clear and convincing evidence supports this finding. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709 N.W.2d 676 (2006).

Under this section, the State shall provide evidence that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).

3. Termination of parental rights

The stated purposes of the Indian Child Welfare Act are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State's failure to notify the child's Indian tribe of the termination of parental rights proceedings as required by subsection (1) of this section. In re Interest of Walter W., 14 Neb. App. 891, 719 N.W.2d 304 (2006).

Under this section, qualified expert testimony is required in a parental rights termination case on the issue of whether serious harm to the Indian child is likely to occur if the child is not removed from the home. In re Interest of Phoebe S. and Rebekah S., 11 Neb. App. 919, 664 N.W.2d 470 (2003).

This section provides specific statutory requirements for proving a case for termination of parental rights in a juvenile court action involving an Indian child, and the petition for termination of parental rights must include sufficient allegations of the requirements of section 43-292 as well as this section to survive a demurrer. In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 (2001).

4. Miscellaneous

In addition to the requirements under the adoption statutes, the Nebraska Indian Child Welfare Act adds two elements to adoption proceedings involving Indian children. First, subsection (4) of this section sets forth an "active efforts" element. Second, subsection (6) of this section sets forth a "serious emotional or physical damage" element. In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).

Subsection (6) of this section requires that the qualified expert's opinion must support the ultimate finding of the court, i.e., that continued custody by the parent will likely result in serious emotional or physical damage to the child. In re Interest of Audrey T., 26 Neb. App 822, 924 N.W.2d 72 (2019).

If an Indian child's tribe was not given proper notice of proceedings resulting in termination of parental rights to the child, the termination proceedings conducted were invalid and the order of termination must be vacated. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).

An Indian child's parent does not qualify as an expert witness under the Nebraska Indian Child Welfare Act based solely on the parent's membership in the Indian tribe and status as the child's parent. In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010).

A father's motion to dismiss the State's temporary custody petition due to the lack of Indian Child Welfare Act allegations by the State could be made during the course of closing arguments. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009).

Evidence that serious emotional harm or physical damage to an Indian child is likely to occur if the child is not removed from the home must be established by qualified expert testimony provided by a professional person having substantial education and experience in the area of his or her specialty, pursuant to the Indian Child Welfare Act. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009).

Evidence was insufficient to establish that a caseworker was sufficiently qualified to testify as an expert witness under the requirements of the Indian Child Welfare Act in an action seeking to adjudicate Indian children, where the caseworker had neither substantial experience in the delivery of child and family services to Indians or extensive knowledge of social and cultural standards in childrearing practices within the tribe, nor was she a professional person with substantial education and experience in the area of her specialty. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009).

The State was required to allege facts with regard to Indian Child Welfare Act requirements that set forth guidelines for courts to follow in involuntary proceedings, although the court knew that an Indian child was involved in the State's petition and motion for temporary custody of children and made Indian Child Welfare Act findings. In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009).

An adjudication petition involving an Indian child must include sufficient allegations of the requirements of this section. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006).

This section provides specific statutory requirements with which notice to an Indian child's tribe of state proceedings involving a foster care placement of an Indian child must comply. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006).

Pursuant to subsection (5) of this section, in a foster care placement determination involving an Indian child, the failure to make a finding, supported by the testimony of a qualified expert, that the continued custody of the child by the parent was likely to result in serious emotional or physical damage to the child is harmless error where a de novo review indicates that the evidence supports this finding of harm. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709 N.W.2d 676 (2006).

43-1505.01. Notice of involuntary proceeding in state court; contents; filing with court.

(1) Notice of an involuntary proceeding in state court involving an Indian child shall conform with the requirements of 25 C.F.R. 23.11 and shall contain the following additional information, to the extent it is known, and if this additional information is unknown, a statement indicating what attempts have been made to locate the information:

(a) The name and last-known address of the Indian child;

(b) The name and address of the Indian child's parents, paternal and maternal grandparents, and Indian custodians, if any;

(d) A statement as to whether the Indian child's residence or domicile is on the tribe's reservation;

(e) An identification of any tribal court order affecting the custody of the Indian child to which a state court may be required to accord full faith and credit; and

(f) A copy of the motion for foster care placement of the Indian child and any accompanying affidavits in support thereof if such documents exist.

(2) A copy of the notice of an involuntary proceeding in state court involving an Indian child, as described in subsection (1) of this section, shall be filed with the court within three days after issuance.

Source:Laws 2015, LB566, § 9.

43-1506. Voluntary proceeding; consent; when valid; initiation of voluntary services; notice; department or state; duties; withdrawal of consent.

(1) When any parent or Indian custodian voluntarily consents (a) to a foster care placement or (b) to relinquishment or termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.

(2) When the department or the state offers the parent, Indian child, or Indian custodian services through a voluntary foster care placement or in-home services and the department or the state knows or has reason to know that an Indian child is involved, the department or the state shall notify the parent or Indian custodian and the Indian child's tribe or tribes, by telephone call, facsimile transmission, email, or registered mail with return receipt requested, of the provision of services and any pending child custody proceeding. If the identity or location of the parent or Indian custodian and the tribe or tribes cannot be determined, such notice shall be given to the secretary and the appropriate area director listed in 25 C.F.R. 23.11 in like manner who may provide the requisite notice to the parent or Indian custodian and the tribe or tribes. Notice shall be provided within five days after the initiation of voluntary services.

(3) When the department or the state offers the parent or Indian custodian services through a voluntary foster care placement or in-home services, the Indian custodian of the child and the Indian child's tribe or tribes have a right to participate in, provide, or consult with the department or the state regarding the provision of voluntary services.

(4) When the department or the state offers the parent or Indian custodian services through a voluntary foster care placement or in-home services, the department or the state shall provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family or unite the parent or Indian custodian with the Indian child until these efforts have proved unsuccessful.

(5) Prior to any voluntary relinquishment or termination of parental rights proceeding in which the department or the state is a party or was providing assistance to a parent or Indian custodian, the department or the state or its designee shall submit the following information, in writing, to the court if it has not previously been provided:

(a) The jurisdictional authority of the court in the proceeding;

(b) The date of the Indian child's birth and the date of any voluntary consent to relinquishment or termination;

(d) The date the parent appeared in court and was informed by the judge of the terms and consequences of any voluntary consent to relinquishment or termination;

(e) The parent fully understood the explanation of such terms and consequences in English or, when necessary, the explanation was interpreted into a language that the parent understood and the parent fully understood the explanation of such terms and consequences in the language into which such terms and consequences were translated;

(f) The name and address of any prospective adoptive parent whose identity is known to the consenting parent;

(g) The promises, if any, made to the parent, as a condition of the parent's consent, including promises regarding the tribal affiliation or health, ethnic, religious, economic, or other personal characteristics of any adoptive family with which the child would be placed; and

(h) The details, if any, of an enforceable communication or contact agreement authorized by section 43-162.

(6) Any parent or Indian custodian may withdraw consent to a foster care or voluntary foster care placement under state law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.

(7) In any voluntary proceedings for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.

(8) After the entry of a final decree of adoption of an Indian child in any state court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent. No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under state law.

Source:Laws 1985, LB 255, § 6; Laws 2015, LB566, § 10.

Annotations

The 2-year time limitation in this section is a statute of limitations; an action to invalidate an adoption must be filed within 2 years of the date of the adoption decree. In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).

The provisions relating to the withdrawal of a relinquishment provided for in this section of the Nebraska Indian Child Welfare Act do not apply to a relinquishment signed prior to the applicability of the act. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).

43-1507. Petition to invalidate actions in violation of law.

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's primary tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 43-1504 to 43-1506.

Source:Laws 1985, LB 255, § 7; Laws 2015, LB566, § 11.

Annotations

A juvenile court's having jurisdiction over the parties and the subject matter constitutes a court of competent jurisdiction within the meaning of this section. In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010).

The absence of language in the petition implicating the Nebraska Indian Child Welfare Act did not support invalidating the adjudication where there was no appeal from the adjudication order. In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010).

An order denying a petition to invalidate pursuant to this section and motion to dismiss is a final order for purposes of section 25-1902. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709 N.W.2d 676 (2006).

Juvenile court's denial of motion to invalidate affirmed under harmless error analysis. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709 N.W.2d 676 (2006).

43-1508. Placement guidelines; preferences; records.

(1) In any adoptive placement of an Indian child under state law, a preference shall be given, in the absence of good cause to the contrary, to a placement with the following in descending priority order:

(a) A member of the Indian child's extended family;

(b) Other members of the Indian child's tribe or tribes;

(d) A non-Indian family committed to enabling the child to have extended family time and participation in the cultural and ceremonial events of the Indian child's tribe or tribes;

(2) Any child accepted for foster care or preadoptive placement or a voluntary foster care placement shall be placed in the least restrictive setting which most approximates a family and in which his or her special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with one of the following in descending priority order:

(a) A member of the Indian child's extended family;

(b) Other members of the Indian child's tribe or tribes;

(d) An Indian foster home licensed or approved by an authorized non-Indian licensing authority;

(e) A non-Indian family committed to enabling the child to have extended family time and participation in the cultural and ceremonial events of the Indian child's tribe or tribes;

(f) An Indian facility or program for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs; or

(g) A non-Indian facility or program for children approved by an Indian tribe.

(3) In the case of a placement under subsection (1) or (2) of this section, if the Indian child's primary tribe shall establish a different order of preference by resolution or in the absence thereof the order established by resolution of the Indian child's other tribes, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (2) of this section. When appropriate, the preference of the Indian child or parent shall be considered, except that, when a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.

(4) The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties. Good cause to deviate from the placement preferences in subsections (1) through (3) of this section includes: (a) The request of the biological parents or the Indian child when the Indian child is at least twelve years of age; (b) the extraordinary physical or emotional needs of the Indian child as established by testimony of a qualified expert witness; or (c) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria. The burden of establishing the existence of good cause to deviate from the placement preferences and order shall be by clear and convincing evidence on the party urging that the preferences not be followed.

(5) A record of each such placement, under state law, of an Indian child shall be maintained by the state, evidencing the efforts to comply with the order of preference specified in this section. Such record shall be made available at any time upon the request of the secretary or the Indian child's tribe or tribes.

Source:Laws 1985, LB 255, § 8; Laws 2015, LB566, § 12.

Annotations

The placement preferences delineated in this section may yield to the wishes of the parent or for other good causes shown. In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992).

Good cause for deviation from the statutory placement preferences was not shown where the record showed that the Department of Health and Human Services was unsuccessful in locating relative placements for the children but did not detail what efforts had been made, the record did not show why the children had not been placed with intervenor grandmother, the grandmother made no argument that such placement should occur and did not assert that the children's nonrelative placements were not in their best interests, and the record did not show if the children's placements met any of the other statutory claims of preference. In re Interest of Enrique P. et al., 19 Neb. App. 778, 813 N.W.2d 513 (2012).

43-1509. Return of custody; removal from foster care; procedures.

(1) Notwithstanding any other state law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 43-1505, that such return of custody is not in the best interests of the Indian child.

(2) Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, such placement shall be in accordance with the Nebraska Indian Child Welfare Act, except in the case in which an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed.

Source:Laws 1985, LB 255, § 9; Laws 2015, LB566, § 13.

Annotations

43-1510. Adopted individual; access to information.

Upon application by an Indian individual who has reached the age of eighteen and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of the tribal affiliation, if any, of the individual's biological parents and provide such other information as may be necessary to protect any rights flowing from the individual's tribal relationship.

Source:Laws 1985, LB 255, § 10.

Annotations

43-1511. Agreements with state agencies; authorized.

(1) The appropriate departments and agencies of this state are authorized to enter into agreements with Indian tribes respecting care and custody of Indian children and jurisdiction over child custody proceedings, including agreements which may provide for orderly transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent jurisdiction between the state and Indian tribes.

(2) Such agreements may be revoked by either party upon one hundred and eighty days' written notice to the other party. Such revocation shall not affect any action or proceeding over which a court has already assumed jurisdiction, unless the agreement provides otherwise.

Source:Laws 1985, LB 255, § 11.

Annotations

43-1512. Improper removal from custody; effect.

When any petitioner in an Indian child custody proceeding before a state court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his or her parent or Indian custodian unless returning the child to his or her parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.

Source:Laws 1985, LB 255, § 12.

Annotations

In a child custody proceeding involving an Indian child, this section applies only when "any petitioner" improperly removes or retains custody of the Indian child; it does not apply where a court order brings about the removal of the Indian child and a petitioner merely follows that order. In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).

43-1513. Higher federal standard of protection; when applicable.

In any case when federal law applicable to a child custody proceeding provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under the Nebraska Indian Child Welfare Act, the state court shall apply the federal standard.

Source:Laws 1985, LB 255, § 13.

Annotations

43-1514. Emergency removal or placement of child; appropriate action; hotline representative; duty.

(1) Nothing in the Nebraska Indian Child Welfare Act shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his or her parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable state law, in order to prevent imminent physical damage or harm to the child. The state authority, official, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of the Nebraska Indian Child Welfare Act, transfer the child to the jurisdiction of the appropriate Indian tribe or tribes, or restore the child to the parent or Indian custodian, as may be appropriate.

(2) During the course of each intake received by the statewide child abuse and neglect hotline provided by the Department of Health and Human Services, the hotline representative shall inquire as to whether the person calling the hotline believes one of the parties involved may be an Indian child or Indian person. If the hotline representative has any reason to believe that an Indian child or Indian person is involved in the intake, the representative shall immediately document the information and inform his or her supervisor.

Source:Laws 1985, LB 255, § 14; Laws 2015, LB566, § 14.

Annotations

43-1515. Applicability of act; exceptions.

None of the provisions of the Nebraska Indian Child Welfare Act, except subsection (1) of section 43-1504 and section 43-1511, shall affect a proceeding under state law for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement which was initiated or completed prior to one hundred and eighty days after November 8, 1978, but shall apply to any subsequent proceeding in the same matter or subsequent proceedings affecting the custody or placement of the same child.

Source:Laws 1985, LB 255, § 15.

Annotations

43-1516. Adoptive placement; information made available.

Any state court entering a final decree or order in any Indian child adoptive placement after September 6, 1985, shall provide the secretary with a copy of such decree or order together with such other information as may be necessary to show:

(1) The name and tribal affiliation of the child;

(2) The names and addresses of the biological parents;

(3) The names and addresses of the adoptive parents; and

(4) The identity of any agency having files or information relating to such adoptive placement.

When the court records contain an affidavit of the biological parent or parents that their identity remain confidential, the court shall include such affidavit with the other information.

Source:Laws 1985, LB 255, § 16.

Annotations

43-1517. Rules and regulations.

The department or the state, in consultation with Indian tribes, shall adopt and promulgate rules and regulations to establish standards and procedures for the department's or the state's review of cases subject to the Nebraska Indian Child Welfare Act and methods for monitoring the department's or the state's compliance with the federal Indian Child Welfare Act and the Nebraska Indian Child Welfare Act. The standards and procedures and the monitoring methods shall be integrated into the department's or the state's structure and plan for the federal government's child and family service review process and any program improvement plan resulting from that process.

Source:Laws 2015, LB566, § 15.

43-1601. Repealed. Laws 1989, LB 265, § 7.

43-1602. Repealed. Laws 1989, LB 265, § 7.

43-1603. Repealed. Laws 1989, LB 265, § 7.

43-1604. Repealed. Laws 1989, LB 265, § 7.

43-1605. Repealed. Laws 1989, LB 265, § 7.

43-1606. Repealed. Laws 1989, LB 265, § 7.

43-1607. Repealed. Laws 1989, LB 265, § 7.

43-1608. Legislative findings.

The Legislature finds that matters relating to the establishment, modification, and enforcement of child, spousal, or medical support should be handled by the district courts, separate juvenile courts, and county courts in an expeditious manner so that parties may obtain needed orders and other action as quickly as possible.

Source:Laws 1989, LB 265, § 1; Laws 1991, LB 715, § 20; Laws 2008, LB1014, § 48.

43-1609. Child support referee; appointment; when; qualifications; oath or affirmation; removal; contracts authorized.

(1) Child support referees shall be appointed when necessary by the district courts, separate juvenile courts, and county courts to meet the requirements of federal law relating to expediting the establishment, modification, enforcement, and collection of child, spousal, or medical support and protection orders issued under section 42-924.

(2) Child support referees shall be appointed by order of the district court, separate juvenile court, or county court. The Supreme Court shall appoint child support referees to serve more than one judicial district if the Supreme Court determines it is necessary.

(3) To be qualified for appointment as a child support referee, a person shall be an attorney in good standing admitted to the practice of law in the State of Nebraska and shall meet any other requirements imposed by the Supreme Court. A child support referee shall be sworn or affirmed to well and faithfully hear and examine the cause and to make a just and true report according to the best of his or her understanding. The oath or affirmation may be administered by a district, county, or separate juvenile court judge. A child support referee may be removed at any time by the appointing court.

(4) The Supreme Court may contract with an attorney to perform the duties of a referee for a specific case or for a specific amount of time or may direct a judge of the county court to perform such duties.

Source:Laws 1989, LB 265, § 2; Laws 1991, LB 715, § 21; Laws 2008, LB1014, § 49; Laws 2017, LB289, § 21.

43-1610. Salaries, offices, staff, equipment.

Salaries, offices, support staff, equipment, furnishings, and supplies for a child support referee shall be provided by the county and state through funds appropriated by the county and state to the district court, separate juvenile court, and county court. If the Supreme Court appoints a referee to serve in more than one judicial district pursuant to section 43-1609, the salary and necessary travel expenses of the referee shall be paid by funds appropriated by the state to the Supreme Court.

Source:Laws 1989, LB 265, § 3; Laws 1991, LB 715, § 22; Laws 2008, LB1014, § 50.

43-1611. Support and paternity matters; protection orders; referral or assignment.

A district court, separate juvenile court, or county court may by rule or order refer or assign any and all matters regarding the establishment, modification, enforcement, and collection of child, spousal, or medical support, paternity matters, and protection orders issued under section 42-924 to a child support referee for findings and recommendations.

Source:Laws 1989, LB 265, § 4; Laws 1991, LB 715, § 23; Laws 2008, LB1014, § 51; Laws 2017, LB289, § 22.

43-1612. Hearing; procedure.

(1) A hearing before a child support referee shall be conducted in the same manner as a hearing before the district court, separate juvenile court, or county court. A child support referee shall have the power to summon and enforce the attendance of parties and witnesses, administer all necessary oaths, supervise pretrial preparation pursuant to the rules of discovery adopted pursuant to section 25-1273.01, grant continuations and adjournments, recommend the appointment of counsel for indigent parties, and carry out any other duties permitted by law and assigned by the district court, separate juvenile court, or county court.

(2) Testimony in matters heard by a child support referee shall be preserved by tape recording or other prescribed measures and in accordance with prescribed standards. Transcripts of all hearings shall be available upon request and all costs of preparing the transcript shall be paid by the party for whom it is prepared.

(3) A child support referee shall, in all cases, announce orally his or her findings and recommendations to the parties or their attorneys and submit a written report to the district court, separate juvenile court, or county court containing findings of fact and recommendations and any and all exceptions.

Source:Laws 1989, LB 265, § 5; Laws 2008, LB1014, § 52.

43-1613. Findings and recommendations; exceptions; review by court.

In any and all cases referred to a child support referee by the district court, separate juvenile court, or county court, the parties shall have the right to take exceptions to the findings and recommendations made by the referee and to have a further hearing before such court for final disposition. The court upon receipt of the findings, recommendations, and exceptions shall review the child support referee's report and may accept or reject all or any part of the report and enter judgment based on the court's own determination.

Source:Laws 1989, LB 265, § 6; Laws 2008, LB1014, § 53.

Annotations

When a referee makes a report and no exception is filed, the district court reviews the referee's report de novo on the record; however, if an exception is filed, the party filing an exception is entitled to a hearing and the district court as a court of equity has the discretion to allow the presentation of new or additional evidence at an exception hearing. State on behalf of Lockwood v. Laue, 24 Neb. App. 909, 900 N.W.2d 582 (2017).

43-1701. Act, how cited.

Sections 43-1701 to 43-1743 shall be known and may be cited as the Income Withholding for Child Support Act.

Source:Laws 1985, Second Spec. Sess., LB 7, § 21; Laws 1991, LB 457, § 17; Laws 1994, LB 1224, § 64; Laws 2000, LB 972, § 19; Laws 2010, LB712, § 27.

43-1702. Purpose of act.

It is the intent of the Legislature to encourage the use of all proven techniques for the collection of child, spousal, and medical support and monetary judgments. While income withholding is the preferred technique, other techniques such as liens on property and contempt proceedings should be used when appropriate. The purpose of the Income Withholding for Child Support Act is to provide a simplified and relatively automatic procedure for implementing income withholding in order to guarantee that child, spousal, and medical support obligations and monetary judgments are met when income is available for that purpose, to encourage voluntary withholding by obligors, and to facilitate the implementation of income withholding based on foreign support orders.

Source:Laws 1985, Second Spec. Sess., LB 7, § 22; Laws 1991, LB 457, § 18; Laws 2010, LB712, § 28.

43-1703. Definitions, where found.

For purposes of the Income Withholding for Child Support Act, unless the context otherwise requires, the definitions found in sections 43-1704 to 43-1717 shall be used.

Source:Laws 1985, Second Spec. Sess., LB 7, § 23; Laws 1991, LB 457, § 19; Laws 2000, LB 972, § 20; Laws 2010, LB712, § 29.

43-1704. Authorized attorney, defined.

Authorized attorney shall mean an attorney (1) employed by the county subject to the approval of the county board, (2) employed by the Department of Health and Human Services, or (3) appointed by the court, who is authorized to investigate and prosecute child, spousal, and medical support cases. An authorized attorney shall represent the state as provided in section 43-512.03.

Source:Laws 1985, Second Spec. Sess., LB 7, § 24; Laws 1987, LB 573, § 3; Laws 1991, LB 457, § 20; Laws 1994, LB 1224, § 65; Laws 1996, LB 1044, § 202; Laws 1997, LB 307, § 78.

43-1705. Child support, defined.

Child support shall mean support for one or more children.

Source:Laws 1985, Second Spec. Sess., LB 7, § 25.

43-1706. Department, defined.

Department shall mean the Department of Health and Human Services.

Source:Laws 1985, Second Spec. Sess., LB 7, § 26; Laws 1996, LB 1044, § 203; Laws 1997, LB 307, § 79.

43-1707. Disposable income, defined.

Disposable income shall mean that part of the income of any individual remaining after the deduction from such income of any amounts required by law to be withheld, excepting the amounts required to be deducted and withheld pursuant to the Income Withholding for Child Support Act or those provisions of law allowing garnishment, attachment, or execution.

Source:Laws 1985, Second Spec. Sess., LB 7, § 27.

43-1708. Employee or payee, defined.

Employee or payee shall mean any person who is compensated by or receives income from an employer or other payor, regardless of how such income is denominated.

Source:Laws 1985, Second Spec. Sess., LB 7, § 28; Laws 1991, LB 457, § 21; Laws 1993, LB 523, § 12.

43-1709. Employer or other payor, defined.

Employer or other payor shall mean any person, partnership, limited liability company, firm, corporation, association, political subdivision, or department or agency of the state or federal government in possession of income and shall include an obligor if he or she is self-employed.

Source:Laws 1985, Second Spec. Sess., LB 7, § 29; Laws 1991, LB 457, § 22; Laws 1993, LB 121, § 217.

43-1710. Foreign support order, defined.

Foreign support order shall mean a support order issued by a court or agency of another jurisdiction.

Source:Laws 1985, Second Spec. Sess., LB 7, § 30.

43-1711. Income, defined.

Income shall mean (1) compensation paid, payable, due, or to be due for personal services, whether denominated as wages, salary, earnings, income, commission, bonus, or otherwise, and shall include any periodic payments pursuant to a pension or a retirement program and dividends, and (2) any other income from whatever source derived.

Source:Laws 1985, Second Spec. Sess., LB 7, § 31; Laws 1993, LB 523, § 13.

43-1712. Income withholding, defined.

Income withholding shall mean retention of an employee's or payee's income pursuant to sections 43-1720 to 43-1723.

Source:Laws 1985, Second Spec. Sess., LB 7, § 32; Laws 1993, LB 523, § 14.

43-1712.01. Medical support, defined.

Medical support shall have the same meaning as found in section 43-512.

Source:Laws 1991, LB 457, § 23.

43-1712.02. Monetary judgment, defined.

Monetary judgment shall mean a monetary judgment against an obligor that is unsatisfied and is owed to the federal or state governmental unit in a case in which services are being provided under Title IV-D of the federal Social Security Act, as amended, and the judgment is related to the support of a child. Monetary judgment includes, but is not limited to, the cost of genetic testing that the obligor has been ordered to pay by a court, plus any accumulated interest on the judgment under sections 45-103 to 45-103.04, whether the order was issued prior to, on, or after July 15, 2010.

Source:Laws 2010, LB712, § 30.

43-1713. Obligee, defined.

Obligee shall mean a person to whom a duty of support is owed pursuant to a support order.

Source:Laws 1985, Second Spec. Sess., LB 7, § 33.

43-1714. Obligor, defined.

Obligor shall mean a person who owes a duty of support pursuant to a support order.

Source:Laws 1985, Second Spec. Sess., LB 7, § 34.

43-1715. Spousal support, defined.

Spousal support shall mean alimony or maintenance support for a spouse or former spouse if the provision for support is a part of an order, decree, or judgment which provides for child support and the child and spouse or former spouse are living in the same household.

Source:Laws 1985, Second Spec. Sess., LB 7, § 35.

43-1715.01. State Disbursement Unit, defined.

State Disbursement Unit shall have the same meaning as found in section 43-3341.

Source:Laws 2000, LB 972, § 21.

43-1716. Support, defined.

Support shall mean the providing of necessary shelter, food, clothing, care, medical support, medical attention, education expenses, funeral expenses, or any other reasonable and necessary expense.

Source:Laws 1985, Second Spec. Sess., LB 7, § 36; Laws 1991, LB 457, § 24.

43-1717. Support order, defined.

Support order shall mean any order, decree, or judgment for child, spousal, or medical support or for payment of any arrearage for such support issued by a court or agency of competent jurisdiction, whether issued prior to, on, or after November 16, 1985, whether for temporary or permanent support, whether interlocutory or final, whether or not modifiable, and whether or not incidental to a proceeding for dissolution of marriage, judicial or legal separation, separate maintenance, paternity, guardianship, or civil protection or any other action. A support order may include payment for any monetary judgment.

Source:Laws 1985, Second Spec. Sess., LB 7, § 37; Laws 1991, LB 457, § 25; Laws 2010, LB712, § 31.

43-1718. Support order; operate as assignment of income; effect; duties.

A support order shall constitute and shall operate as an assignment, to the State Disbursement Unit, of that portion of an obligor's income as will be sufficient to pay the amount ordered for child, spousal, or medical support and shall be binding on any existing or future employer or other payor of the obligor. The assignment shall take effect as provided in section 43-1718.01 or 43-1718.02 or on the date on which the payments are delinquent in an amount equal to the support due and payable for a one-month period of time, whichever is earlier. No obligor whose child support payments are automatically withheld from his or her paycheck shall be regarded or reported as being delinquent or in arrears if (1) any delinquency or arrearage is solely caused by a disparity between the schedule of the obligor's regular pay dates and the scheduled date the support is due, (2) the total amount of support to be withheld from the paychecks of the obligor and the amount ordered by the support order are the same on an annual basis, and (3) the automatic deductions for support are continuous and occurring.

An assignment shall have priority as against any attachment, execution, or other assignment unless otherwise specifically ordered by a court of competent jurisdiction.

The Title IV-D Division of the Department of Health and Human Services or its designee shall be responsible for administering income withholding. In administering income withholding, the Title IV-D Division or its designee shall keep accurate records to document, track, and monitor support payments.

Source:Laws 1985, Second Spec. Sess., LB 7, § 38; Laws 1991, LB 457, § 26; Laws 1994, LB 1224, § 66; Laws 1997, LB 18, § 3; Laws 2000, LB 972, § 22.

43-1718.01. Obligor; subject to income withholding; when; notice; alternative payment method; conditions.

(1) In any case in which services are provided under Title IV-D of the federal Social Security Act, as amended, and a support order has been issued or modified on or after September 6, 1991, the obligor's income shall be subject to income withholding regardless of whether or not payments pursuant to such order are in arrears, and the court shall require such income withholding in its order unless:

(a) One of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; or

(b) A written agreement between the parties, including the state if there is an assignment of support pursuant to section 43-512.07, providing an alternative arrangement is incorporated into the support order.

(2) In any case in which services are provided under Title IV-D of the federal Social Security Act, as amended, the income of an obligor not subject to withholding pursuant to subsection (1) of this section shall become subject to income withholding:

(a) On the date on which the payments are delinquent in an amount equal to the support due and payable for a one-month period of time; or

(b) Regardless of whether payments are in arrears, on the earliest of (i) the date as of which the obligor requests that income withholding begin, (ii) the date as of which the obligee requests that income withholding begin if the department determines that such request should be approved, or (iii) any earlier date after September 6, 1991, which the department selects.

The obligor shall receive notice of income withholding and his or her right to a hearing pursuant to section 43-1720 when his or her income is withheld pursuant to subdivision (b)(ii) or (b)(iii) of this subsection.

(3) In any case in which services are provided under Title IV-D of the federal Social Security Act, as amended, and a support order has been issued or modified on or after September 6, 1991, the noncustodial parent may pay his or her support through monthly automatic financial institution withdrawal through the State Disbursement Unit if the following conditions are met:

(a) The noncustodial parent, the custodial parent, and the department sign a written, notarized agreement;

(b) The noncustodial parent is current and not in arrears on his or her support payments at the time of the written, notarized agreement;

(c) The amount automatically withdrawn from the noncustodial parent's financial institution is at least the amount of the court-ordered monthly support obligation; and

(d) The automatic financial institution withdrawal occurs on a regular, consistent basis each month.

Any partial payment or missed payment shall subject the noncustodial parent to mandatory income withholding as provided in the court order.

(4) No obligor whose child support payments are automatically withheld from his or her paycheck shall be regarded or reported as being delinquent or in arrears if (a) any delinquency or arrearage is solely caused by a disparity between the schedule of the obligor's regular pay dates and the scheduled date the child support is due, (b) the total amount of child support to be withheld from the paychecks of the obligor and the amount ordered by the support order are the same on an annual basis, and (c) the automatic deductions for child support are continuous and occurring.

(5) The department shall adopt and promulgate rules and regulations necessary to carry out this section.

Source:Laws 1991, LB 457, § 27; Laws 1997, LB 18, § 4; Laws 2016, LB924, § 1.

43-1718.02. Obligor; subject to income withholding; when; notice; employer or other payor; prohibited acts; violation; penalty; termination or modification; notice; enforcement.

(1) In any case in which services are not provided under Title IV-D of the federal Social Security Act, as amended, and a support order has been issued or modified on or after July 1, 1994, the obligor's income shall be subject to income withholding regardless of whether or not payments pursuant to such order are in arrears, and the court shall require such income withholding in its order unless:

(a) One of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; or

(b) A written agreement between the parties providing an alternative arrangement is incorporated into the support order.

(2) If the court pursuant to subsection (1) of this section orders income withholding regardless of whether or not payments are in arrears, the obligor shall prepare a notice to withhold income. The notice to withhold income shall be substantially similar to a prototype prepared by the department and made available by the department to the State Court Administrator and the clerks of the district courts. The notice to withhold shall direct:

(a) That the employer or other payor shall withhold from the obligor's disposable income the amount stated in the notice to withhold for the purpose of satisfying the obligor's ongoing obligation for support payments as they become due, if there are arrearages, to reduce such arrearages in child, spousal, or medical support payments arising from the obligor's failure to fully comply with a support order, and after the obligor's support obligation is current, to satisfy any monetary judgment against the obligor;

(b) That the employer or other payor shall pay to the obligor, on his or her regularly scheduled payday, such income then due which is not required to be withheld as stated on the notice or pursuant to any court order;

(c) That the employer or other payor shall not withhold more than the maximum amount permitted to be withheld under section 303(b) of the federal Consumer Credit Protection Act, 15 U.S.C. 1673(b)(2)(A) and (B), and the amount withheld, including interest, to satisfy an arrearage of child, spousal, or medical support or any monetary judgment when added to the amount withheld to pay current support and the fee provided for in subdivision (2)(d) of this section shall not exceed such maximum amount;

(d) That the employer or other payor may assess an additional administrative fee from the obligor's disposable income not to exceed two dollars and fifty cents in any calendar month as compensation for the employer's or other payor's reasonable cost incurred in complying with the notice;

(e) That the employer or other payor shall remit, within seven days after the date the obligor is paid and in the manner specified in the notice, the income withheld, less the deduction allowed as an administrative fee by subdivision (2)(d) of this section, to the State Disbursement Unit and shall notify the unit of the date such income was withheld;

(f) That the notice to withhold income shall terminate with respect to the employer or other payor without any court action or action by the obligor thirty days after the obligor ceases employment with or is no longer entitled to income from such employer or other payor;

(g) That the employer or other payor may combine amounts required to be withheld from the income of two or more obligors in a single payment to the unit if the portion of the single payment which is attributable to each individual obligor is separately identified;

(h) That an employer or other payor who fails to withhold and remit income of an obligor after receiving proper notice or who discriminates, demotes, disciplines, or terminates an employee or payee after receiving a notice to withhold income shall be subject to the penalties prescribed in subsections (4) and (5) of this section; and

(i) That if the employer or other payor receives more than one notice to withhold income of a single obligor and the amount of income available to be withheld pursuant to the limits specified in subdivision (c) of this subsection is insufficient to satisfy the total support amount stated in the notices, the income available shall first be applied to current support. If the total amount of income available to be withheld is insufficient to satisfy the total amount of current support stated by the notices, the employer or other payor shall withhold for each notice the proportion that the amount of the current support stated in such notice bears to the total amount of current support stated in all notices received for the obligor. Any remaining income available to be withheld after current support is satisfied for all notices shall be applied to arrearages. If arrearages are stated in more than one notice, the employer or other payor shall withhold for each notice the proportion that the amount of the arrearage stated in such notice bears to the total amount of arrearage stated in all notices received for the obligor. Any income available to be withheld after the obligor's support obligation is current shall be applied to any monetary judgment. If a monetary judgment is stated in more than one notice, the employer or other payor shall withhold for each notice the proportion that the amount of the monetary judgments stated in such notice bears to the total amount of monetary judgments stated in all notices received for the obligor.

Compliance with the order by the employer or other payor shall operate as a discharge of the employer's or other payor's liability to the obligor as to the portion of the obligor's income withheld.

(3) The obligor shall deliver the notice to withhold income to his or her current employer or other payor and provide a copy of such notice to the clerk of the district court.

(4) Any employer or other payor who fails to withhold and remit any income of an obligor receiving income from the employer or other payor, after proper notice as provided in subsection (2) of this section, shall be required to pay to the unit the amount specified in the notice.

(5)(a) An employer or other payor shall not use an order or notice to withhold income or order or the possibility of income withholding as a basis for (i) discrimination in hiring, (ii) demotion of an employee or payee, (iii) disciplinary action against an employee or payee, or (iv) termination of an employee or payee.

(b) Upon application by the obligor and after a hearing on the matter, the court may impose a civil fine of up to five hundred dollars for each violation of this subsection.

(c) An employer or other payor who violates this subsection shall be required to make full restitution to the aggrieved employee or payee, including reinstatement and backpay.

(6) When an obligor ceases employment with or is no longer entitled to income from an employer or other payor, the notice to withhold income shall not cease to operate against the obligor and income withholding shall continue to apply to any subsequent employment or income of the obligor. The notice to withhold income shall terminate with respect to the employer or other payor without any court action or action by the obligor thirty days after the obligor ceases employment with or is no longer entitled to income from such employer or other payor. A notice to withhold income shall also terminate when the child, spousal, or medical support obligation terminates, all past-due support has been paid, and any monetary judgment has been paid, in which case the obligor shall notify the employer or other payor to cease withholding income.

(7) A notice to withhold income may be modified or revoked by a court of competent jurisdiction as a result of modification of the support order. A notice to withhold income may also be modified or revoked by a court of competent jurisdiction, for other good cause shown, after notice and a hearing on the issue.

(8) The obligee or obligor may file an action in district court to enforce this section.

(9) If after an order is issued in any case under this section the case becomes one in which services are provided under Title IV-D of the federal Social Security Act, as amended, the county attorney or authorized attorney or the Department of Health and Human Services shall implement income withholding as otherwise provided in the Income Withholding for Child Support Act.

Source:Laws 1994, LB 1224, § 67; Laws 1996, LB 1044, § 204; Laws 1996, LB 1155, § 11; Laws 1997, LB 307, § 80; Laws 1997, LB 752, § 104; Laws 2000, LB 972, § 23; Laws 2007, LB296, § 130; Laws 2010, LB712, § 32.

43-1719. Employer or other payor; duty to furnish information; action to enforce.

Any employer or other payor shall respond within ten days to a written request by a county attorney, an authorized attorney, or the department for information concerning: (1) The full name of an obligor; (2) the current address of the obligor; (3) the obligor's social security number; (4) the obligor's work location; (5) the number of the obligor's claimed dependents; (6) the obligor's gross income; (7) the obligor's net income; (8) an itemized statement of deductions from the obligor's income; (9) the obligor's pay schedule; and (10) the obligor's health insurance coverage. The employer or other payor shall not be required to provide any other information. The county attorney or authorized attorney may file an action in the district court to enforce this section.

Source:Laws 1985, Second Spec. Sess., LB 7, § 39; Laws 1991, LB 457, § 28.

43-1720. Notice to employer, payor, or obligor; contents.

If the department has previously sent a notice of assignment and opportunity for hearing on the same support order under section 48-647, the county attorney, authorized attorney, or the department shall state the amount to be withheld from an obligor's disposable income pursuant to section 43-1722 and shall notify the obligor's employer or other payor pursuant to section 43-1723. If the department has not previously sent such notice, and except in cases in which the court has ordered income withholding pursuant to subsection (1) of section 43-1718.01 or section 43-1718.02, upon receiving certification pursuant to section 42-358 or notice of delinquent payments of medical support, the county attorney, the authorized attorney, or the department shall send a notice by certified mail to the last-known address of the obligor stating:

(1) That an assignment of his or her income by means of income withholding will go into effect within fifteen days after the date the notice is sent;

(2) That the income withholding will continue to apply to any subsequent employer or other payor of the obligor;

(3) The amount of support and any monetary judgment the obligor owes;

(4) The amount of income that will be withheld; and

(5) That within the fifteen-day period, the obligor may request a hearing in the manner specified in the notice to contest a mistake of fact. For purposes of this subdivision, mistake of fact shall mean (a) an error in the amount of current or overdue support or the amount of any monetary judgment, (b) an error in the identity of the obligor, or (c) an error in the amount to be withheld as provided in section 43-1722.

Source:Laws 1985, Second Spec. Sess., LB 7, § 40; Laws 1986, LB 600, § 3; Laws 1991, LB 457, § 29; Laws 1993, LB 523, § 15; Laws 1994, LB 1224, § 68; Laws 1996, LB 1044, § 205; Laws 1996, LB 1155, § 12; Laws 1997, LB 307, § 81; Laws 2007, LB296, § 131; Laws 2010, LB712, § 33.

Annotations

Unless a prior notice has been sent and except where a court has ordered income withholding for child support, the notice of income withholding is triggered by receipt of certification from the clerk of the district court made pursuant to section 42-358. McKibbin v. State, 5 Neb. App. 570, 560 N.W.2d 507 (1997).

43-1721. Hearing, when held.

If the obligor requests a hearing, the department shall hold a hearing, if required by section 43-1720, within fifteen days of the date of receipt of the request, and the hearing shall be in accordance with the Administrative Procedure Act. The assignment shall be held in abeyance pending the outcome of the hearing. The department shall notify the obligor and the county attorney or authorized attorney of its decision within fifteen days of the date the hearing is held.

Source:Laws 1985, Second Spec. Sess., LB 7, § 41; Laws 1986, LB 600, § 4; Laws 1991, LB 457, § 30.

Cross References

Administrative Procedure Act, see section 84-920.

43-1722. Assignment; statement of amount.

(1) If no hearing is requested by the obligor, (2) if after a hearing the department determines that the assignment should go into effect, (3) in cases in which the court has ordered income withholding pursuant to subsection (1) of section 43-1718.01, or (4) in cases in which the court has ordered income withholding pursuant to section 43-1718.02, which case subsequently becomes one in which services are being provided under Title IV-D of the federal Social Security Act, as amended, the county attorney, the authorized attorney, or the department shall state the amount to be withheld from the obligor's disposable income. Such amount shall not in any case exceed the maximum amount permitted to be withheld under section 303(b) of the federal Consumer Credit Protection Act, 15 U.S.C. 1673(b)(2)(A) and (B), and the amount withheld, including interest, to satisfy an arrearage of child, spousal, or medical support or any monetary judgment when added to the amount withheld to pay current support and the fee provided for in section 43-1723 shall not exceed such maximum amount.

Source:Laws 1985, Second Spec. Sess., LB 7, § 42; Laws 1991, LB 457, § 31; Laws 1993, LB 523, § 16; Laws 1994, LB 1224, § 69; Laws 1996, LB 1155, § 13; Laws 2010, LB712, § 34.

43-1723. Notice to employer or other payor; contents; compliance; effect.

Except as otherwise provided in this section, the county attorney, the authorized attorney, or the department shall notify the obligor's employer or other payor, by first-class mail or by electronic means, within the time determined by the department which shall comply with the requirements of Title IV-D of the federal Social Security Act, as amended. The notice shall specify the basis for the assignment of income and shall direct:

(1) That the employer or other payor shall withhold from the obligor's disposable income the amount stated by the county attorney, the authorized attorney, or the department for the purpose of reducing and satisfying the obligor's (a) previous arrearage in child, spousal, or medical support payments arising from the obligor's failure to fully comply with a support order previously entered, (b) ongoing obligation for support payments as they become due, and (c) then any monetary judgment;

(2) That the employer or other payor shall implement income withholding no later than the first pay period that begins following the date on the notice;

(3) That the employer or other payor shall pay to the obligor, on his or her regularly scheduled payday, such income then due which is not stated to be withheld pursuant to section 43-1722 or any court order;

(4) That the employer or other payor may assess an additional administrative fee from the obligor's disposable income not to exceed two dollars and fifty cents in any calendar month as compensation for the employer's or other payor's reasonable cost incurred in complying with the notice;

(5) That the employer or other payor shall remit, within seven days after the date the obligor is paid and in the manner specified in the notice, the income withheld, less the deduction allowed as an administrative expense by subdivision (4) of this section, to the State Disbursement Unit as designated in the notice and shall notify the unit of the date such income was withheld;

(6) That the employer or other payor shall notify the county attorney, the authorized attorney, or the department in writing of the termination of the employment or income of the obligor, the last-known address of the obligor, and the name and address of the obligor's new employer or other payor, if known, and shall provide such written notification within thirty days after the termination of employment or income;

(7) That income withholding is binding on the employer or other payor until further notice by the county attorney, the authorized attorney, or the department;

(8) That the employer or other payor may combine amounts required to be withheld from the income of two or more obligors in a single payment to the unit as designated in an income withholding notice if the portion of the single payment which is attributable to each individual obligor is separately identified;

(9) That an employer or other payor who fails to withhold and remit income of an obligor after receiving proper notice or who discriminates, demotes, disciplines, or terminates an employee or payee after receiving an income withholding notice shall be subject to the penalties prescribed in sections 43-1724 and 43-1725; and

(10) That if the employer or other payor receives more than one notice to withhold income of a single obligor and the amount of income available to be withheld pursuant to the limits specified in section 43-1722 is insufficient to satisfy the total support amount stated in the notices, the income available shall first be applied to current support. If the total amount of income available to be withheld is insufficient to satisfy the total amount of current support stated by the notices, the employer or other payor shall withhold for each notice the proportion that the amount of the current support stated in such notice bears to the total amount of current support stated in all notices received for the obligor. Any remaining income available to be withheld after current support is satisfied for all notices shall be applied to arrearages. If arrearages are stated in more than one notice, the employer or other payor shall withhold for each notice the proportion that the amount of the arrearage stated in such notice bears to the total amount of arrearage stated in all notices received for the obligor. Any income available to be withheld after the obligor's support obligation is current shall be applied to any monetary judgment. If a monetary judgment is stated in more than one notice, the employer or other payor shall withhold for each notice the proportion that the amount of the monetary judgments stated in such notice bears to the total amount of monetary judgments stated in all notices received for the obligor.

Compliance with the order by the employer or other payor shall operate as a discharge of the employer's or other payor's liability to the obligor as to the portion of the obligor's income withheld. The county attorney, the authorized attorney, or the department need not notify the Commissioner of Labor as a payor if the commissioner is withholding for child support from the obligor under section 48-647 for the same support order.

Source:Laws 1985, Second Spec. Sess., LB 7, § 43; Laws 1986, LB 600, § 5; Laws 1991, LB 457, § 32; Laws 1993, LB 523, § 17; Laws 1996, LB 1155, § 14; Laws 1997, LB 752, § 105; Laws 2000, LB 972, § 24; Laws 2003, LB 245, § 3; Laws 2010, LB712, § 35.

43-1724. Employer or other payor; failure to withhold and remit income; effect.

Any employer or other payor who fails to withhold and remit any income of an obligor receiving income from the employer or other payor, after proper notice as provided in section 43-1723, shall be required to pay the stated amount to the State Disbursement Unit. The county attorney or authorized attorney may file an action in district court to enforce this section. The court may sanction an employer or other payor twenty-five dollars per day, up to five hundred dollars per incident, for failure to comply with proper notice.

Source:Laws 1985, Second Spec. Sess., LB 7, § 44; Laws 1991, LB 457, § 33; Laws 1993, LB 523, § 18; Laws 2005, LB 116, § 20; Laws 2010, LB712, § 36.

43-1725. Employer or other payor; prohibited actions; penalty.

An employer or other payor shall not use an income withholding notice or order or the possibility of income withholding as a basis for (1) discrimination in hiring, (2) demotion of an employee or payee, (3) disciplinary action against an employee or payee, or (4) termination of an employee or payee.

Upon application by the county attorney or authorized attorney and after a hearing on the matter, the court may impose a civil fine of up to five hundred dollars for each violation of this section.

An employer or other payor who violates this section may be required to make full restitution to the aggrieved employee or payee, including reinstatement and backpay.

Source:Laws 1985, Second Spec. Sess., LB 7, § 45; Laws 1991, LB 457, § 34; Laws 1993, LB 523, § 19.

43-1726. Notice to withhold income; termination; exception; procedure.

When an obligor ceases employment with or is no longer entitled to income from an employer or other payor, the notice to withhold income shall not cease to operate against the obligor and income withholding shall continue to apply to any subsequent employment or income of the obligor. The notice to withhold income shall terminate with respect to the employer or other payor without any court action or action by the county attorney, the authorized attorney, or the department thirty days after the obligor ceases employment with or is no longer entitled to income from such employer or other payor, except that a notice to withhold income shall not terminate with respect to unemployment compensation benefits being withheld by the Commissioner of Labor pursuant to section 48-647. The employer or other payor shall return a copy of the notice to withhold income to the county attorney, the authorized attorney, or the department, indicate that the employment or obligation to pay income has ceased, and cooperate in providing any known forwarding information. The county attorney, the authorized attorney, or the department shall notify the clerk of the appropriate district court that such employment or obligation to pay income has ceased. A notice to withhold income shall also terminate when the child, spousal, or medical support obligation terminates, all past-due support has been paid, and any monetary judgments have been paid, in which case the county attorney, the authorized attorney, or the department shall notify the employer or other payor to cease withholding income.

Source:Laws 1985, Second Spec. Sess., LB 7, § 46; Laws 1986, LB 600, § 6; Laws 1991, LB 457, § 35; Laws 1993, LB 523, § 20; Laws 1996, LB 1155, § 15; Laws 2010, LB712, § 37.

43-1727. Income withholding notice; modification or revocation; notice.

(1) An income withholding notice may be modified or revoked by a court of competent jurisdiction or by the county attorney, the authorized attorney, or the department as a result of a review conducted pursuant to sections 43-512.12 to 43-512.18. An income withholding notice may also be modified or revoked by a court of competent jurisdiction, for other good cause shown, after notice and a hearing on the issue. An income withholding notice may also be modified or revoked by the county attorney, the authorized attorney, or the department as provided in subsection (2) of this section or for other good cause. Payment by the obligor of overdue support or any monetary judgment, other than through income withholding, after receipt of notice of income withholding shall not by itself constitute good cause for modifying or revoking an income withholding notice.

(2) When income withholding has been implemented and, as a result, a support delinquency has been eliminated, the Title IV-D Division or its designee shall notify the county attorney, the authorized attorney, or the department. Upon receipt of such notification, the county attorney, the authorized attorney, or the department shall modify the income withholding notice to require income withholding for current support and any monetary judgments and shall notify the employer or other payor of the change in the same manner as provided in section 43-1723.

Source:Laws 1985, Second Spec. Sess., LB 7, § 47; Laws 1991, LB 457, § 36; Laws 1991, LB 715, § 24; Laws 1996, LB 1155, § 16; Laws 2000, LB 972, § 25; Laws 2010, LB712, § 38.

43-1728. Income from another jurisdiction; withholding order; how obtained.

(1) In any case in which the department is providing services either directly or pursuant to a contract with a county attorney or authorized attorney or (2) on application of a resident of this state, an obligee or obligor of a support order issued in this state, or an agency to whom an obligee has assigned child, spousal, or medical support rights, the department shall promptly request the agency of another jurisdiction in which the obligor derives income to receive and file such request for the purpose of obtaining a withholding order against such income. The department shall promptly compile and transmit to the agency of the cooperating jurisdiction all documentation required to effectuate an income withholding order. The department also shall transmit immediately to the agency of the cooperating jurisdiction a certified copy of any subsequent modification of any support order. The department may contract with an agent to carry out its powers and duties pursuant to sections 43-1728 to 43-1742.

Source:Laws 1985, Second Spec. Sess., LB 7, § 48; Laws 1991, LB 457, § 37; Laws 1993, LB 523, § 21.

43-1729. Foreign support order; acceptance; procedure.

Upon receiving a foreign support order and the documentation specified in section 43-1730 from an agency of another jurisdiction, an obligee, an obligor, or an attorney for either, the department shall transmit such order and documents to be filed with the clerk of the district court in the jurisdiction within this state in which income withholding is being sought. The clerk of the district court shall accept the documents filed, and such acceptance shall constitute entry of the foreign support order for purposes of income withholding.

The filing process required by this section shall not be construed as requiring an application, petition, answer, and hearing as might be required for the filing or registration of foreign judgments by the Nebraska Uniform Enforcement of Foreign Judgments Act or the Uniform Interstate Family Support Act.

Source:Laws 1985, Second Spec. Sess., LB 7, § 49; Laws 1993, LB 458, § 13; Laws 1993, LB 500, § 56; Laws 2000, LB 972, § 26.

Cross References

Nebraska Uniform Enforcement of Foreign Judgments Act, see section 25-1587.01.

Uniform Interstate Family Support Act, see section 42-701.

43-1730. Entry of foreign support order; documentation required.

The following documentation shall be required for the entry of a foreign support order:

(1) A certified copy of the foreign support order with all modifications;

(2) A certified copy of an income withholding order or notice, if any, still in effect;

(3) A copy of the portion of the income withholding statute of the jurisdiction which issued the support order which states the requirements for obtaining an income withholding order or notice under the law of such jurisdiction;

(4) A sworn statement of the obligee or certified statement of the requesting agency of the arrearages of child, spousal, or medical support payments and the assignment of the support rights, if any;

(5) A statement of the name, address, and social security number of the obligor, if known;

(6) A statement of the name and address of the obligor's employer or other payor or of any other source of income of the obligor derived in this state from which income withholding is sought; and

(7) A statement of the name and address of the agency or person to whom support payments collected by income withholding shall be transmitted.

Source:Laws 1985, Second Spec. Sess., LB 7, § 50; Laws 1991, LB 457, § 38.

43-1731. Documentation; remedy of defects.

If the documentation received by the department does not conform to the requirements of section 43-1730, the department shall remedy any defect which it can without the assistance of the requesting agency or person. If the department is unable to make such corrections, the requesting agency or person shall immediately be notified of the necessary additions or corrections. In neither case shall the original documentation be returned. The department and the receiving court shall accept the documentation required by section 43-1730 even if it is not in the usual form required by state or local law or rules so long as the substantive requirements of such section are met.

Source:Laws 1985, Second Spec. Sess., LB 7, § 51.

43-1732. Foreign support order; how enforced.

A foreign support order entered pursuant to section 43-1729 shall be enforceable by withholding from income derived in this state in the manner and with the same effect as income withholding based on a support order of this state, except that any hearing requested by the obligor to contest any proposed income withholding shall be held by a court as provided in section 43-1733 instead of by the department. Entry of the order shall not confer jurisdiction on the courts of this state for any purpose other than income withholding.

Source:Laws 1985, Second Spec. Sess., LB 7, § 52.

43-1733. Foreign support order; income withholding notice; contents; hearing; when held.

Unless a foreign support order requires income withholding regardless of whether or not payment pursuant to such order is in arrears, within ten days after the date a foreign support order is entered pursuant to section 43-1729 the county attorney or authorized attorney shall serve upon the obligor notice of proposed income withholding in accordance with section 43-1720. The notice shall also advise the obligor that income withholding was requested on the basis of a foreign support order.

If the obligor seeks a hearing to contest the proposed income withholding, the county attorney or authorized attorney shall immediately notify the obligee and obligor or their attorneys of the date, time, and place of the hearing.

Any such hearing shall be held by the appropriate court in the same manner as a civil action except as provided otherwise in sections 43-1734 to 43-1737.

Source:Laws 1985, Second Spec. Sess., LB 7, § 53; Laws 1993, LB 523, § 22.

43-1734. Foreign support order; validity; prima facie evidence; allowable defenses.

At any hearing contesting a proposed income withholding based on a foreign support order entered under section 43-1729, the entered order, the certified copy of an income withholding order or notice, if any, still in effect, and the sworn or certified statement concerning arrearages and any assignment of rights shall constitute prima facie evidence, without further proof or foundation, that the support order is valid, that the amount of current support payments and arrearages is as stated, and that the obligee would be entitled to income withholding under the law of the jurisdiction which issued the support order.

Once a prima facie case has been established, the obligor may raise only the following defenses:

(1) That withholding is not proper because of a mistake of fact, that is not res judicata, concerning matters such as an error in the amount of current support owed or the arrearage that has accrued, mistaken identity of the obligor, or error in the amount of income to be withheld;

(2) That the court or agency which issued the support order lacked personal jurisdiction over the obligor;

(3) That the support order was obtained by fraud; or

(4) That the statute of limitations, as provided in subsection (3) of section 43-1742, precludes enforcement of all or part of the arrearages.

The burden shall be on the obligor to establish such defenses.

Source:Laws 1985, Second Spec. Sess., LB 7, § 54; Laws 1991, LB 457, § 39.

43-1735. Foreign support order; continuance; undisputed amount; withholding.

If the obligor presents evidence which constitutes a full or partial defense under section 43-1734, the court shall, on the request of the obligee, continue the case to permit further evidence relative to the defense to be adduced by either party, except that if the obligor acknowledges liability sufficient to entitle the obligee to income withholding, the court shall require such withholding for the payment of current child, spousal, or medical support payments under the foreign support order and of so much of any arrearage as is not in dispute, while continuing the case with respect to those matters still in dispute. The court shall determine such matters as soon as possible and if appropriate shall modify the withholding order to conform to its determination.

Source:Laws 1985, Second Spec. Sess., LB 7, § 55; Laws 1991, LB 457, § 40.

43-1736. Foreign support order; discovery; testimony; evidence; voluntary testimony.

(1) In addition to other procedural devices available to a party, any party to an income withholding proceeding based on a foreign support order or a guardian ad litem or other representative of the child may adduce testimony of witnesses in another state, including the parties and any of the children, by deposition, by written discovery, by electronic discovery such as videotaped depositions, or by personal appearance before the court by telephone or electronic means. The court on its own motion may direct that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony shall be taken.

(2) A court of this state may request the appropriate court or agency of another state to hold a hearing to adduce evidence, to permit a deposition to be taken before the court or agency, to order a party to produce or give evidence under other procedures of that state, and to forward to the court of this state certified copies of the evidence adduced in compliance with the request.

(3) Upon request of a court or agency of another state, the courts of this state which are competent to hear support matters may order a person in this state to appear at a hearing or deposition before the court to adduce evidence or to produce or give evidence under other procedures available in this state. A certified copy of the evidence adduced, such as a transcript or videotape, shall be forwarded by the clerk of the court to the requesting court or agency.

(4) A person within this state may voluntarily testify by statement or affidavit in this state for use in a proceeding to obtain income withholding outside this state.

Source:Laws 1985, Second Spec. Sess., LB 7, § 56.

43-1737. Income withholding; when effective.

If the obligor does not request a hearing in the time provided or if the foreign support order provides for income withholding regardless of whether or not payment pursuant to such order is in arrears, the income withholding notice shall take effect and the obligor's employer or other payor shall be notified pursuant to section 43-1723. If a hearing is held and it is determined that the obligee has been or is entitled to income withholding under the local law of the jurisdiction which issued the foreign support order, the court shall issue an income withholding order to the obligor's employer or other payor in the same manner as the notice provided for in section 43-1723.

Source:Laws 1985, Second Spec. Sess., LB 7, § 57; Laws 1986, LB 600, § 7; Laws 1991, LB 457, § 41; Laws 1993, LB 523, § 23.

43-1738. Foreign support order entry; effect; amounts credited.

A foreign support order entered pursuant to section 43-1729 shall not nullify and shall not be nullified by a support order made by a court of this state pursuant to any other law or by any other foreign support order. Amounts collected by any income withholding shall be credited against the amounts accruing or accrued for any period under any support order issued by this state which is the subject of an income withholding notice or any other foreign support order which is the subject of an income withholding order pursuant to section 43-1737.

Source:Laws 1985, Second Spec. Sess., LB 7, § 58.

43-1739. Foreign support order; receipt of amendment or modification; effect.

Upon receiving a certified copy of any amendment or modification to a foreign support order entered pursuant to section 43-1729, the department shall initiate necessary procedures to amend or modify the income withholding order of this state which was based upon the foreign support order in the same manner as if it were a support order of this state.

Source:Laws 1985, Second Spec. Sess., LB 7, § 59.

43-1740. Foreign support order; obligor; new or additional income or employment; county or authorized attorney; duties.

If the county attorney or authorized attorney determines that an obligor subject to a foreign support order has obtained employment in another state or has a new or additional source of income in another state, he or she shall notify the agency or person who requested the income withholding of the changes and shall forward to such agency or person all information he or she has or can obtain with respect to the obligor's new address and the name and address of the obligor's new employer or other payor or other source of income. The county attorney or authorized attorney shall include with the notice a certified copy of the income withholding order or notice in effect in this state.

Source:Laws 1985, Second Spec. Sess., LB 7, § 60; Laws 1991, LB 457, § 42.

43-1741. Foreign support order; voluntary income withholding; procedure.

Any person who is the obligor on a foreign support order may obtain voluntary income withholding by filing with the court a request for such withholding and a certified copy of the foreign support order. The court shall issue an income withholding order pursuant to section 43-1737. Payment shall be made to the State Disbursement Unit.

Source:Laws 1985, Second Spec. Sess., LB 7, § 61; Laws 2000, LB 972, § 27.

43-1742. Foreign support order; applicability of law.

(1) Except as provided in subsections (2) and (3) of this section, the local law of this state shall apply in all actions and proceedings concerning the issuance, enforcement, and duration of income withholding orders issued by a court of this state based upon a foreign support order entered pursuant to section 43-1729.

(2) The local law of the jurisdiction which issued the foreign support order shall govern the following:

(a) The interpretation of the support order including amount of support, form of payment, and duration of support;

(b) The amount of support arrearages necessary to require the issuance of an income withholding order or notice; and

(c) The definition of what costs, in addition to the periodic support obligation, are included as arrearages which are enforceable by income withholding, including, but not limited to, interest, attorney's fees, court costs, and costs of paternity testing.

(3) The court shall apply the statute of limitations for maintaining an action on arrearages of support payments of either the local law of this state or of the state which issued the foreign support order, whichever provides the longer period of time.

Source:Laws 1985, Second Spec. Sess., LB 7, § 62.

43-1743. Consent to income withholding; when allowed; procedure.

Nothing in the Income Withholding for Child Support Act shall be construed as prohibiting a person from consenting to an income withholding order as part of a property settlement agreement incorporated into a decree dissolving a marriage or by agreement in a proceeding in the county court, district court, county court sitting as a juvenile court, or separate juvenile court in which the payment of child, spousal, or medical support is an issue. Any such order or agreement shall be filed with the clerk of the district court who shall notify the person's employer or other payor, if any, of the order or agreement by first-class mail and file a record of such mailing in the court. The income withholding shall be treated in all other respects the same as an income withholding initiated pursuant to section 43-1720.

Source:Laws 1985, Second Spec. Sess., LB 7, § 63; Laws 1991, LB 457, § 43; Laws 1996, LB 1296, § 25.

43-1801. Grandparent, defined.

As used in sections 43-1801 to 43-1803, unless the context otherwise requires, grandparent shall mean the biological or adoptive parent of a minor child's biological or adoptive parent. Such term shall not include a biological or adoptive parent of any minor child's biological or adoptive parent whose parental rights have been terminated.

Source:Laws 1986, LB 105, § 1.

Annotations

Under this section, "context" means the context of the statutory language and not the factual circumstances of an individual's case. As such, persons who acted as grandparents but were not the "biological or adoptive parent of [the] minor child's biological or adoptive parent" have no right to grandparent visitation under the grandparent visitation statutes. Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).

Although the Nebraska grandparent visitation statutes recognize the interests of the child in the continuation of the grandparent relationship, under Nebraska's grandparent visitation statutes as a whole, the best interests of the child consideration does not deprive the parent of sufficient protection, because visitation will not be awarded where such visitation would adversely interfere with the parent-child relationship. Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).

Nebraska's grandparent visitation statutes are not unconstitutional on their face. Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).

Grandparents' standing is predicated upon their satisfying the statutory definition of "grandparent" at the time they filed their action for grandparent visitation. Dean D. v. Rachel S., 26 Neb. App. 678, 923 N.W.2d 87 (2018).

43-1802. Visitation; conditions; order; modification.

(1) A grandparent may seek visitation with his or her minor grandchild if:

(a) The child's parent or parents are deceased;

(b) The marriage of the child's parents has been dissolved or petition for the dissolution of such marriage has been filed, is still pending, but no decree has been entered; or

(2) In determining whether a grandparent shall be granted visitation, the court shall require evidence concerning the beneficial nature of the relationship of the grandparent to the child. The evidence may be presented by affidavit and shall demonstrate that a significant beneficial relationship exists, or has existed in the past, between the grandparent and the child and that it would be in the best interests of the child to allow such relationship to continue. Reasonable rights of visitation may be granted when the court determines by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship.

(3) The court may modify an order granting or denying such visitation upon a showing that there has been a material change in circumstances which justifies such modification and that the modification would serve the best interests of the child.

Source:Laws 1986, LB 105, § 2.

Annotations

1. Showing required for order for visitation

2. Modification

3. Miscellaneous

1. Showing required for order for visitation

Under the Nebraska grandparent visitation statutes, a court is without authority to order grandparent visitation unless a petitioning grandparent can prove by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship. Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).

This section sets out criteria for awarding grandparent visitation which must be proved by clear and convincing evidence before a court may exercise its discretionary authority to grant grandparent visitation rights. Eberspacher v. Hulme, 248 Neb. 202, 533 N.W.2d 103 (1995).

After the deaths of the minor child's biological parents, the child's maternal biological grandparents became his parents by adopting him. Therefore, the child's parents are not deceased within the meaning of this statute, and the paternal biological grandparents cannot seek court ordered visitation under subsection (1)(a) of this section. Rust v. Buckler, 247 Neb. 852, 530 N.W.2d 630 (1995).

A court can order grandparent visitation only if the petitioning grandparent proves by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship. Gatzemeyer v. Knihal, 25 Neb. App. 897, 915 N.W.2d 630 (2018).

Pursuant to subsection (2) of this section, a grandparent seeking visitation over the objection of a natural parent must satisfy the statutory burden of proof to establish the existence of a significant beneficial relationship with the child and that it will be in the best interests of the child to continue the relationship; the notion that a relationship with biological grandparents is axiomatically in the best interests of a child is not sufficient. Vrtatko v. Gibson, 19 Neb. App. 83, 800 N.W.2d 676 (2011).

The overriding and paramount consideration in determining grandparent visitation rights is the best interests of the children. The disruption to the lives of the grandchildren, including the distance of travel to exercise visitation rights, is clearly an appropriate consideration in the award of grandparent visitation privileges. Beal v. Endsley, 3 Neb. App. 589, 529 N.W.2d 125 (1995).

2. Modification

Modification of grandparent visitation may be ordered pursuant to subsection (3) of this section, subject to the parties' receiving notice and having an opportunity to be heard. Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019).

Grandparents' existing visitation rights are not automatically terminated by an adoption, but can be modified upon a showing of cause with the child's best interests at issue. Raney v. Blecha, 258 Neb. 731, 605 N.W.2d 449 (2000).

In order for a trial court to grant grandparent visitation under subsection (2) of this section, evidence must be adduced to enable the court to find "by clear and convincing evidence that there is, or has been, a significant beneficial relationship between the grandparent and the child, that it is in the best interests of the child that such relationship continue, and that such visitation will not adversely interfere with the parent-child relationship". Nothing contained within the modification provisions of the grandparent visitation statutes makes the modification of previously ordered grandparent visitation dependent upon the parent's continued parental relationship with the child. By the grandparent visitation statutes' express provision of a method by which to modify previously ordered grandparent visitation, the Legislature intended that grandparent visitation granted under those statutes not be interrupted by the adoption statutes. Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999).

The statutory criteria for modification of a prior grandparent visitation order are different than the criteria for obtaining grandparent visitation initially. Grandparents' efforts to undermine the relationship between a mother and her children do not serve the best interests of the children. Morris v. Corzatt, 255 Neb. 182, 583 N.W.2d 26 (1998).

3. Miscellaneous

Pursuant to subdivision (1)(b) of this section, the fact that the granting of a petition for grandparent visitation might be unconstitutional as applied does not deprive a court of subject matter jurisdiction over a petition; rather, it simply means that the grandparent visitation statutes cannot be constitutionally applied to a particular scenario. Kane v. Kane, 311 Neb. 657, 974 N.W.2d 312 (2022).

Because the order for temporary grandparent visitation at issue was not a final, appealable order, the appellate court could not address whether such orders were permissible. Simms v. Friel, 302 Neb. 1, 921 N.W.2d 369 (2019).

Nebraska's grandparent visitation statutes are narrowly drawn and explicitly protect parental rights while taking the child's best interests into consideration. Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512 (2006).

The grandparent visitation statutes do not provide for an award of attorney fees, nor is there a uniform course of procedure in these cases which would allow recovery of attorney fees. A grandparent visitation action may be initiated either during the dissolution proceeding or after the marriage of the parents has been dissolved. Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73 (1994).

The grandparents' standing is predicated upon their satisfying the statutory definition of "grandparent" at the time they filed their action for grandparent visitation. Dean D. v. Rachel S., 26 Neb. App. 678, 923 N.W.2d 87 (2018).

When grandparents sought grandparent visitation under subdivision (1)(b) of this section, their legally cognizable interest was predicated upon the divorce of their grandchild's parents. The grandparents' legal basis for visitation still existed because the grandchild's parents remained divorced. Thus, the grandparents' application for grandparent visitation did not become moot, because they continued to have a legally cognizable interest in the outcome of litigation, they sought to determine a question upon existing facts and rights, and the issues presented were still alive. Dean D. v. Rachel S., 26 Neb. App. 678, 923 N.W.2d 87 (2018).

At the commencement of the case, grandparents had standing to seek visitation; however, the case became moot when, during the pendency of the proceedings, the statutory requirements for grandparent visitation ceased to exist. Muzzey v. Ragone, 20 Neb. App. 669, 831 N.W.2d 38 (2013).

Pursuant to subsection (2) of this section, a juvenile court is not the proper venue for a grandparent to petition for grandparent visitation under the grandparent visitation statutes. It is within the juvenile court's statutory jurisdiction to determine a motion for visitation asserted by a grandparent who has properly intervened. In re Interest of Dylan W., 8 Neb. App. 1039, 606 N.W.2d 847 (2000).

The standard of review in cases involving visitation by grandparents is the same as the standard of review in other custody and visitation cases. Dice v. Dice, 1 Neb. App. 241, 493 N.W.2d 207 (1992).

43-1803. Venue; petition; contents; service.

(1) If the minor child's parent or parents are deceased or have never been married, a grandparent seeking visitation shall file a petition in the district court in the county in which the minor child resides. If the marriage of the parents of a minor child has been dissolved or a petition for the dissolution of such marriage has been filed, is still pending, but no decree has been entered, a grandparent seeking visitation shall file a petition for such visitation in the district court in the county in which the dissolution was had or the proceedings are taking place. The county court or the district court may hear the proceeding as provided in section 25-2740. The form of the petition and all other pleadings required by this section shall be prescribed by the Supreme Court. The petition shall include the following:

(a) The name and address of the petitioner and his or her attorney;

(b) The name and address of the parent, guardian, or other party having custody of the child or children;

(d) The name and year of birth of each child with whom visitation is sought;

(e) The relationship of petitioner to such child or children;

(f) An allegation that the parties have attempted to reconcile their differences, but the differences are irreconcilable and such parties have no recourse but to seek redress from the court; and

(g) A statement of the relief sought.

(2) When a petition seeking visitation is filed, a copy of the petition shall be served upon the parent or parents or other party having custody of the child and upon any parent not having custody of such child by personal service or in the manner provided in section 25-517.02.

Source:Laws 1986, LB 105, § 3; Laws 1996, LB 1296, § 26; Laws 1997, LB 229, § 39; Laws 2007, LB221, § 2.

Annotations

Pursuant to subsection (1) of this section, the fact that the granting of a petition for grandparent visitation might be unconstitutional as applied does not deprive a court of subject matter jurisdiction over a petition; rather, it simply means that the grandparent visitation statutes cannot be constitutionally applied to a particular scenario. Kane v. Kane, 311 Neb. 657, 974 N.W.2d 312 (2022).

In an action for grandparent visitation, the noncustodial father has a statutory right to be served with a copy of the petition and to be given notice of the trial. Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).

It is clear from the language of subdivision (2) of this section that both parents should be served with a copy of the petition in an action for grandparent visitation. Davis v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021).

A grandparent visitation action may be initiated either during the dissolution proceeding or after the marriage of the parents has been dissolved. Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73 (1994).

A noncustodial parent is entitled to be served and participate in grandparent visitation proceedings by virtue of both subdivision (2) of this section and the parent's constitutionally protected parental rights. A noncustodial parent is an indispensable party to grandparent visitation actions, and when the parent is not joined as a party, the court lacks jurisdiction to consider such action. Morse v. Olmer, 29 Neb. App. 346, 954 N.W.2d 638 (2021).

A proceeding for grandparent visitation under this section is subject to the Nebraska Child Custody Jurisdiction Act, section 43-1201 et seq. Dorszynski v. Reier, 6 Neb. App. 877, 578 N.W.2d 457 (1998). Note: Sections 43-1201 to 43-1225 were repealed in 2003.

Juvenile court is not the proper venue for grandparents seeking visitation rights of children placed in the temporary custody of the Nebraska Department of Social Services, since this section specifically provides for venue in the district court of the county where the children reside or in the district court where dissolution of parents' marriage was pending or was dissolved. In re Interest of Zachary W. & Alyssa W., 3 Neb. App. 274, 526 N.W.2d 233 (1994).

43-1901. Legislative findings.

The Legislature hereby finds that the large number of confirmed cases of child abuse and neglect places an enormous burden upon the citizens and government of Nebraska because victimized and maltreated children often bear the scars of abuse and neglect for many years and even throughout their lives. The Legislature recognizes that siblings, parents, and entire families suffer from the disruption and turmoil which accompany incidents of child abuse and neglect.

The Legislature further recognizes that the taxpaying public labors under the heavy economic burden of paying for the destructive effects of child abuse including subsequent juvenile delinquency, educational problems, adult criminal activity, mental illness, and poor parenting behavior.

The Legislature further recognizes that child abuse and neglect is a problem that should be approached through prevention efforts and that society presently possesses the ability to prevent many of these problems before the suffering and social costs begin to mount.

It is the expressed intent of sections 43-1901 to 43-1906 to make the prevention of child abuse and neglect a priority of this state and to establish the Nebraska Child Abuse Prevention Fund as a means to that end.

Source:Laws 1986, LB 333, § 1.

43-1902. Terms, defined.

As used in sections 43-1901 to 43-1906, unless the context otherwise requires:

(1) Board means the Nebraska Child Abuse Prevention Fund Board;

(2) Department means the Department of Health and Human Services; and

(3) Fund means the Nebraska Child Abuse Prevention Fund.

Source:Laws 1986, LB 333, § 2; Laws 1996, LB 1044, § 206; Laws 2007, LB296, § 132.

43-1903. Nebraska Child Abuse Prevention Fund Board; created; members; terms; vacancies; officers; expenses; removal.

(1) There is hereby created within the department the Nebraska Child Abuse Prevention Fund Board which shall be composed of nine members as follows: Two representatives of the Department of Health and Human Services appointed by the chief executive officer and seven members to be appointed by the Governor with the approval of the Legislature. The Governor shall appoint two members from each of the three congressional districts and one member from the state at large. As a group, the appointed board members (a) shall demonstrate knowledge in the area of child abuse and neglect prevention, (b) shall be representative of the demographic composition of this state, and (c) to the extent practicable, shall be representative of all of the following categories (i) the business community, (ii) the religious community, (iii) the legal community, (iv) professional providers of child abuse and neglect prevention services, and (v) volunteers in child abuse and neglect prevention services.

(2) The term of each appointed board member shall be three years, except that of the board members first appointed, two, including the at-large member, shall serve for three years, three shall serve for two years, and two shall serve for one year. The Governor shall designate the term which each of the members first appointed shall serve when he or she makes the appointments. An appointed board member shall not serve more than two consecutive terms whether partial or full. A vacancy shall be filled for the balance of the unexpired term in the same manner as the original appointment.

(3) The board shall elect a chairperson from among the appointed board members who shall serve for a term of two years. The board may elect the other officers and establish committees as it deems appropriate.

(4) The members of the board shall not receive any compensation for their services but shall be reimbursed for expenses incurred in the performance of their duties as provided in sections 81-1174 to 81-1177. The reimbursement shall be paid from the fund. In any one fiscal year, no more than five percent of the annually available funds as provided in section 43-1906 shall be used for the purpose of reimbursement of board members.

(5) Any board member may be removed by the Governor for misconduct, incompetency, or neglect of duty after first being given the opportunity to be heard in his or her own behalf.

Source:Laws 1986, LB 333, § 3; Laws 1996, LB 1044, § 207; Laws 2007, LB296, § 133; Laws 2020, LB381, § 31.

43-1904. Board; powers and duties.

The board shall have the following powers and duties:

(1) To meet not less than twice annually at the call of the chairperson to conduct its official business;

(2) To require that at least five of the board members approve the awarding of grants made under subdivision (3)(b) of this section; and

(3) To develop, one year after the appointment of the original board and annually thereafter, a state plan for the distribution and disbursement of money in the fund. The plan developed under this subdivision shall assure that an equal opportunity exists for the establishment and maintenance of prevention programs and the receipt of money from the fund in all geographic areas of this state. The plan shall be transmitted to the department, the Governor, and the Legislature and made available to the general public. In carrying out a plan developed under this subdivision, the board shall establish procedures for:

(a) Developing and publicizing criteria for the awarding of grants for programs to be supported with money from the fund within the limits of appropriations made for that purpose;

(b) Awarding grants to agencies, organizations, or individuals for community-based child abuse prevention programs. The programs shall provide education, public awareness, or prevention services. In awarding grants under this subdivision, consideration shall be given by the board to factors such as need, geographic location, diversity, coordination with or improvement of existing services, and extensive use of volunteers;

(d) Consulting with applicable state agencies, commissions, and boards to help determine probable effectiveness, fiscal soundness, and need for proposed community-based educational and service prevention programs;

(e) Facilitating information exchange among groups concerned with prevention programs; and

(f) Encouraging statewide educational and public awareness programs regarding the problems of families and children which (i) encourage professional persons and groups to recognize and deal with problems of families and children, (ii) make information regarding the problems of families and children and the prevention of such problems available to the general public in order to encourage citizens to become involved in the prevention of such problems, and (iii) encourage the development of community prevention programs.

Source:Laws 1986, LB 333, § 4; Laws 2007, LB296, § 134.

43-1905. Department; duties.

The department shall:

(1) Have the power to deny any grant award, or portion of such award, made by the board;

(2) Review and monitor expenditures of money from the fund on a periodic basis; and

(3) Submit to the Governor and the Legislature an annual report of all receipts and disbursements of funds, including the recipients, the nature of the program funded, the dollar amount awarded, and the percentage of the total annually available funds the grant represents. The report submitted to the Legislature shall be submitted electronically. The report may be made available to the public upon request.

Source:Laws 1986, LB 333, § 5; Laws 2007, LB296, § 135; Laws 2012, LB782, § 46.

43-1906. Nebraska Child Abuse Prevention Fund; established; investment; use.

(1) There is hereby established the Nebraska Child Abuse Prevention Fund. The additional child abuse prevention fee as provided in section 33-106.03, the additional charge for supplying a certified copy of the record of any birth as provided in sections 71-612, 71-617.15, 71-627, and 71-628, and all amounts which may be received from grants, gifts, bequests, the federal government, or other sources granted or given for the purposes specified in sections 43-1901 to 43-1906 shall be remitted to the State Treasurer for credit to the Nebraska Child Abuse Prevention Fund. The fund shall be administered and disbursed by the department.

(2) Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(3) In any one fiscal year, no more than twenty percent of the annually appropriated funds shall be disbursed to any one agency, organization, or individual.

(4) Funds allocated from the fund shall only be used for purposes authorized under sections 43-1901 to 43-1906 and shall not be used to supplant any existing governmental program or service. No grants may be made to any state department or agency.

Source:Laws 1986, LB 333, § 6; Laws 1995, LB 7, § 39; Laws 2002, LB 1310, § 4; Laws 2002, Second Spec. Sess., LB 48, § 2; Laws 2017, LB307, § 4.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-2001. Act, how cited.

Sections 43-2001 to 43-2012 shall be known and may be cited as the Missing Children Identification Act.

Source:Laws 1987, LB 599, § 1.

43-2002. Legislative findings.

Each year Nebraska children are reported missing. The Legislature is seeking a procedure whereby it can help locate such missing children through school records and birth certificates filed with the schools and the Department of Health and Human Services.

Source:Laws 1987, LB 599, § 2; Laws 1997, LB 307, § 82; Laws 2007, LB296, § 136.

43-2003. Terms, defined.

As used in the Missing Children Identification Act, unless the context otherwise requires:

(1) County agency means any agency in a county that records and maintains birth certificates;

(2) Department means the Department of Health and Human Services;

(3) Missing person means a person sixteen years of age or younger reported to any law enforcement agency as abducted or lost; and

(4) Patrol means the Nebraska State Patrol.

Source:Laws 1987, LB 599, § 3; Laws 1996, LB 1044, § 208; Laws 1997, LB 307, § 83; Laws 2007, LB296, § 137.

43-2004. Missing person; notification.

Upon notification to a local law enforcement agency of the disappearance of a missing person, such agency shall immediately notify the patrol which shall notify the school in which such missing person is enrolled and the department. The department shall notify the county agency if such missing person was born in such county. Any information known to the patrol shall be supplied to the department.

Source:Laws 1987, LB 599, § 4; Laws 1997, LB 307, § 84.

43-2005. Flagging birth certificate.

If a missing person was born in Nebraska, the department shall flag such person's birth certificate, and if such person was born in a county where a county agency records and maintains birth certificates, such agency shall also flag the birth certificate in its custody.

Source:Laws 1987, LB 599, § 5; Laws 1997, LB 307, § 85.

43-2006. Flagged birth certificate; inquiry and request; how handled.

(1) If an inquiry is made regarding the flagged birth certificate, the department or county agency shall not furnish any information to such requesting person and shall request the name of the inquirer, address, and any other pertinent information. The department and such county agency shall immediately notify the patrol of such inquiry.

(2) If a request is made in person from the department or such county agency for a flagged birth certificate, the department or such county agency shall:

(a) Immediately notify the patrol or local law enforcement agency;

(b) Have the person requesting the flagged birth certificate fill in a form requesting such person's name, address, telephone number, social security number, and relationship to the person whose birth certificate is being requested and the name, address, and birthdate of the person whose birth certificate is being requested;

(d) Inform the person making the request that the birth certificate will be mailed to him or her;

(e) Report the description of such person making the request and any other relevant information to the patrol or other law enforcement agency; and

(f) Provide the patrol with copies of such documents but retain the original in the office of the department or county agency.

(3) If a request is made for such birth certificate in writing, the department or county agency shall notify the patrol and provide the patrol with a copy of the request but retain the original request in the office of the department or county agency.

Source:Laws 1987, LB 599, § 6; Laws 1997, LB 307, § 86.

43-2007. Schools; exempt school; duties.

(1) Upon notification by the patrol of a missing person, any school in which the missing person is currently or was previously enrolled shall flag the school records of such person in such school's possession. The school shall report immediately any request concerning a flagged record or any knowledge of the whereabouts of the missing person.

(2) Upon enrollment of a student for the first time in a public school district or private school system, the school of enrollment shall notify in writing the person enrolling the student that within thirty days he or she must provide either (a) a certified copy of the student's birth certificate or (b) other reliable proof of the student's identity and age accompanied by an affidavit explaining the inability to produce a copy of the birth certificate.

(3) Upon enrollment of a student who is receiving his or her education in an exempt school subject to sections 79-1601 to 79-1607, the parent or guardian of such student shall provide to the Commissioner of Education either (a) a certified copy of the student's birth certificate or (b) other reliable proof of the student's identity and age accompanied by an affidavit explaining the inability to produce a copy of the birth certificate.

(4) Upon failure of the person, parent, or guardian to comply with subsection (2) or (3) of this section, the school or Commissioner of Education shall notify such person, parent, or guardian in writing that unless he or she complies within ten days the matter shall be referred to the local law enforcement agency for investigation. If compliance is not obtained within such ten-day period, the school or commissioner shall immediately report such matter. Any affidavit received pursuant to subsection (2) or (3) of this section that appears inaccurate or suspicious in form or content shall be reported immediately to the local law enforcement agency by the school or commissioner.

(5) Any school requested to forward a copy of a transferred student's record shall not forward a copy of such record to the requesting school if the record has been flagged pursuant to subsection (1) of this section. If such record has been flagged, the school to whom such request is made shall notify the local law enforcement agency of the request and that such student is a reported missing person.

Source:Laws 1987, LB 599, § 7; Laws 1991, LB 511, § 3; Laws 1992, LB 245, § 9; Laws 1996, LB 900, § 1047; Laws 2009, LB549, § 2.

43-2008. Flag; requirements.

The flag on such birth certificate or school record shall be large enough so that any personnel looking at such birth certificate or record shall be alerted to the fact that such birth certificate or record is of a missing person.

Source:Laws 1987, LB 599, § 8.

43-2009. Removal of flag.

Upon notification of recovery of such missing person, the department, the county agency, and any school pursuant to section 43-2007 shall remove the flag from such person's record.

Source:Laws 1987, LB 599, § 9; Laws 1997, LB 307, § 87.

43-2010. Local law enforcement agency; duties.

Any local law enforcement agency notified pursuant to the Missing Children Identification Act of the request for the birth certificate, school record, or other information concerning a missing person shall immediately notify the patrol of such request and shall investigate such matter.

Source:Laws 1987, LB 599, § 10.

43-2011. Immunity from liability.

Any school or any person acting on behalf of a school shall be immune from civil and criminal liability for any acts or omissions which occur as a result of the requirements of the Missing Children Identification Act.

Source:Laws 1987, LB 599, § 11.

43-2012. Department; patrol; adopt rules and regulations.

The department and the patrol shall adopt and promulgate rules and regulations necessary to carry out their responsibilities under the Missing Children Identification Act.

Source:Laws 1987, LB 599, § 12; Laws 1997, LB 307, § 88.

43-2101. Persons under nineteen years of age declared minors; marriage, effect; person eighteen years of age or older; rights and responsibility.

(1) All persons under nineteen years of age are declared to be minors, but in case any person marries under the age of nineteen years, his or her minority ends.

(2) Upon becoming the age of majority, a person is considered an adult and acquires all rights and responsibilities granted or imposed by statute or common law, except that a person:

(a) Eighteen years of age or older and who is not a ward of the state may:

(i) Enter into a binding contract or lease of whatever kind or nature and shall be legally responsible for such contract or lease, including legal responsibility to third parties;

(ii) Execute, sign, authorize, or otherwise authenticate (A) an effective financing statement, (B) a promissory note or other instrument evidencing an obligation to repay, or (C) a mortgage, trust deed, security agreement, financing statement, or other security instrument to grant a lien or security interest in real or personal property or fixtures, and shall be legally responsible for such document, including legal responsibility to third parties; and

(iii) Acquire or convey title to real property and shall have legal responsibility for such acquisition or conveyance, including legal responsibility to third parties; and

(b) Eighteen years of age or older may consent to mental health services for himself or herself without the consent of his or her parent or guardian.

Source:R.S.1866, c. 23, § 1, p. 178; R.S.1913, § 1627; Laws 1921, c. 247, § 1, p. 853; C.S.1922, § 1576; C.S.1929, § 38-101; R.S.1943, § 38-101; Laws 1965, c. 207, § 1, p. 613; Laws 1969, c. 298, § 1, p. 1072; Laws 1972, LB 1086, § 1; R.S.1943, (1984), § 38-101; Laws 1988, LB 790, § 6; Laws 2010, LB226, § 2; Laws 2018, LB982, § 1; Laws 2019, LB55, § 5.

Cross References

Juvenile committed under Nebraska Juvenile Code, marriage under age of nineteen years does not make juvenile age of majority, see section 43-289.

Annotations

Unless married, persons under 19 years of age are declared to be minors pursuant to subsection (1) of this section. Johnson v. Johnson, 308 Neb. 623, 956 N.W.2d 261 (2021).

43-2201. Legislative intent.

It is the intent of the Legislature to:

(1) Promote kinship care and lifelong connections through the process of family finding when a child has been removed from the legal custody of the child's parents;

(2) Prevent recurrence of abuse, neglect, exploitation, or other maltreatment of children;

(3) Reduce the length of time children spend in foster care;

(4) Reduce multiple placements of children in foster care;

(5) Remain in compliance with the federal Fostering Connections to Success and Increasing Adoptions Act of 2008, Public Law 110-351; and

(6) Create a pilot project for the process of locating and engaging family members in the life of a child who is a ward of the state or is participating in the bridge to independence program as defined in section 43-4503, or both, and in need of permanency through a lifelong network of support.

Source:Laws 2015, LB243, § 1.

43-2202. Terms, defined.

For purposes of sections 43-2201 to 43-2209:

(1) Department means the Department of Health and Human Services;

(2) Family finding means the process described in section 43-2203;

(3) Family member means:

(a) A person related to a child by blood, adoption, or affinity within the fifth degree of kinship;

(b) A stepparent;

(d) The spouse, widow, widower, or former spouse of any of the persons described in subdivisions (a) through (c) of this subdivision; and

(e) Any individual who is a primary caretaker or trusted adult in a kinship home and who, as a primary caretaker, has lived with the child or, as a trusted adult, has a preexisting, significant relationship with the child;

(4) Kinship home means a home in which a child receives foster care and at least one of the primary caretakers has previously lived with or is a trusted adult that has a preexisting, significant relationship with the child;

(5) Provider means an organization providing services as a child-placing agency; and

(6) Service area means a geographic area administered by the department and designated pursuant to section 81-3116.

Source:Laws 2015, LB243, § 2.

43-2203. Pilot project participants; duties.

The department, its contracted providers of family finding services, and family members of children involved in cases which are part of the pilot project created in section 43-2204 shall participate in family finding. Family finding is the process of engagement, searching, preparation, planning, decisionmaking, lifetime network creation, healing, and permanency in order to:

(1) Search for and identify family members and engage them in planning and decisionmaking;

(2) Gain commitments from family members to support a child through nurturing relationships and to support the parent or parents, when appropriate; and

(3) Achieve a safe, permanent legal home or lifelong connection for the child, either through reunification or through permanent placement through legal guardianship or adoption.

Source:Laws 2015, LB243, § 3.

43-2204. Pilot project; created; department; duties; termination of project.

A pilot project is created to provide family finding services within at least two service areas. The department shall contract with providers of family finding services to carry out the family finding services pilot project. A provider may contract within multiple service areas. Each contracting provider shall be trained in and implement the steps described in section 43-2203. The family finding services pilot project shall terminate on June 30, 2019.

Source:Laws 2015, LB243, § 4; Laws 2022, LB1173, § 9.

43-2205. Department; duties; collaboration.

(1) Under the pilot project created under section 43-2204, the department shall refer a portion of all cases involving children who are wards of the state in foster care or participating in the bridge to independence program as defined in section 43-4503, or both, to providers of family finding services who or which shall (a) locate family members of the children, (b) engage and empower family members, and (c) create an individualized plan to achieve a safe, permanent legal home for the children when possible.

(2) The department shall provide administrative oversight of the contracts entered into pursuant to the pilot project created under section 43-2204.

(3) A child's departmental case manager, the child's foster parents, and the provider of family finding services shall collaborate together to maximize success throughout the family finding process.

(4) The department shall carry out the requirements of the Interstate Compact for the Placement of Children when achieving out-of-state placement of a ward of the court, including prompt submission of required paperwork to ensure that the family finding process moves forward in a timely manner.

Source:Laws 2015, LB243, § 5.

Cross References

Interstate Compact for the Placement of Children, see section 43-1103.

43-2206. Legislative intent.

It is the intent of the Legislature to appropriate seven hundred fifty thousand dollars from the General Fund for each of fiscal years 2015-16 and 2016-17 and one million five hundred thousand dollars from the General Fund for each of fiscal years 2017-18 and 2018-19 to the department which shall pursue federal matching funds as applicable and allocate such funds to contracting providers of family finding services who or which shall use such funds to (1) provide family finding services pursuant to contracts with the department, (2) create and coordinate training initiatives for departmental case managers assigned to cases referred for family finding services to promote provider and family engagement and to train case managers on the principles of family finding services for successful outcomes, and (3) provide contract monitoring and oversight of the pilot project and pay evaluation costs.

Source:Laws 2015, LB243, § 6.

43-2207. Data collection system.

The department shall establish a data collection system and collect data from participating providers annually. Such data shall be divided by service area and shall include (1) the number of participating children and youth, (2) the ages of the participating children and youth, (3) the duration of each case, and (4) case outcomes, including permanency, guardianship, and family support. Data involving incomplete cases shall be included and identified as such.

Source:Laws 2015, LB243, § 7.

43-2208. Independent evaluation of pilot project.

The department shall contract with an academic institution to complete an independent evaluation of the pilot project created under section 43-2204. The evaluation shall assess the effectiveness of the pilot project in achieving the purposes described in section 43-2201 and the overall fiscal impact. The evaluation shall begin after completion of the second year of the pilot project and shall be completed in the third year of the pilot project. The department shall electronically transmit the evaluation to the Health and Human Services Committee of the Legislature.

Source:Laws 2015, LB243, § 8.

43-2209. Rules and regulations.

The department may adopt and promulgate rules and regulations to carry out sections 43-2201 to 43-2208.

Source:Laws 2015, LB243, § 9.

43-2301. Repealed. Laws 1992, LB 907, § 29.

43-2302. Repealed. Laws 1992, LB 907, § 29.

43-2303. Repealed. Laws 1992, LB 907, § 29.

43-2304. Repealed. Laws 1992, LB 907, § 29.

43-2305. Repealed. Laws 1992, LB 907, § 29.

43-2401. Act, how cited.

Sections 43-2401 to 43-2412 shall be known and may be cited as the Juvenile Services Act.

Source:Laws 1990, LB 663, § 1; Laws 2000, LB 1167, § 40; Laws 2001, LB 640, § 2; Laws 2018, LB670, § 9.

43-2402. Terms, defined.

For purposes of the Juvenile Services Act:

(1) Coalition means the Nebraska Coalition for Juvenile Justice established pursuant to section 43-2411;

(2) Commission means the Nebraska Commission on Law Enforcement and Criminal Justice;

(3) Commission Grant Program means grants provided to eligible applicants under section 43-2406;

(4) Community-based Juvenile Services Aid Program means aid to counties and federally recognized or state-recognized Indian tribes provided under section 43-2404.02;

(5) Eligible applicant means a community-based agency or organization, political subdivision, school district, federally recognized or state-recognized Indian tribe, or state agency necessary to comply with the federal act;

(6) Federal act means the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601 et seq., as the act existed on January 1, 2013;

(7) Juvenile means a person who is under eighteen years of age; and

(8) Office of Juvenile Services means the Office of Juvenile Services created in section 43-404.

Source:Laws 1990, LB 663, § 2; Laws 1992, LB 447, § 6; Laws 2000, LB 1167, § 41; Laws 2001, LB 640, § 3; Laws 2013, LB561, § 45.

43-2403. Legislative findings; purposes of act.

The Legislature hereby finds that the incarceration of juveniles in adult jails, lockups, and correctional facilities is contrary to the best interests and well-being of juveniles and frequently inconsistent with state and federal law requiring intervention by the least restrictive method. The Legislature further finds that the lack of available alternatives within local communities is a significant factor in the incarceration of juveniles in such adult jails, lockups, and correctional facilities.

To address such lack of available alternatives to the incarceration of juveniles, the Legislature declares it to be the policy of the State of Nebraska to aid in the establishment of programs or services for juveniles under the jurisdiction of the juvenile or criminal justice system and to finance such programs or services with appropriations from the General Fund and with funds acquired by participation in the federal act. The purposes of the Juvenile Services Act shall be to (1) assist in the provision of appropriate preventive, diversionary, and dispositional alternatives for juveniles, (2) encourage coordination of the elements of the juvenile services system, and (3) provide an opportunity for local involvement in developing community programs for juveniles so that the following objectives may be obtained:

(a) Preservation of the family unit whenever the best interests of the juvenile are served and such preservation does not place the juvenile at imminent risk;

(b) Limitation on intervention to those actions which are necessary and the utilization of the least restrictive yet most effective and appropriate resources;

(c) Encouragement of active family participation in whatever treatment is afforded a juvenile whenever the best interests of the juvenile require it;

(d) Treatment in the community rather than commitment to a youth rehabilitation and treatment center whenever the best interests of the juvenile require it; and

(e) Assistance in the development of alternatives to secure temporary custody for juveniles who do not require secure detention.

Source:Laws 1990, LB 663, § 3; Laws 1992, LB 447, § 7; Laws 1994, LB 988, § 25; Laws 1995, LB 739, § 2; Laws 1997, LB 424, § 1; Laws 2000, LB 1167, § 42; Laws 2001, LB 640, § 4.

43-2404. Grants; use.

The coalition shall make award recommendations to the commission, at least annually, in accordance with the Juvenile Services Act and the federal act for grants made under the Commission Grant Program. Such grants shall be used to assist in the implementation and operation of programs or services identified in the applicable comprehensive juvenile services plan, to include: Programs for local planning and service coordination; screening, assessment, and evaluation; diversion; alternatives to detention; family support services; treatment services; reentry services; truancy prevention and intervention programs; and other services documented by data that will positively impact juveniles and families in the juvenile justice system.

Source:Laws 1990, LB 663, § 4; Laws 1992, LB 447, § 8; Laws 1997, LB 424, § 2; Laws 2000, LB 1167, § 43; Laws 2001, LB 640, § 5; Laws 2013, LB561, § 46.

43-2404.01. Comprehensive juvenile services plan; contents; statewide system to evaluate fund recipients; Director of the Community-based Juvenile Services Aid Program; duties.

(1) To be eligible for participation in either the Commission Grant Program or the Community-based Juvenile Services Aid Program, a comprehensive juvenile services plan shall be developed, adopted, and submitted to the commission in accordance with the federal act and rules and regulations adopted and promulgated by the commission in consultation with the Director of the Community-based Juvenile Services Aid Program, the Director of Juvenile Diversion Programs, the Office of Probation Administration, and the University of Nebraska at Omaha, Juvenile Justice Institute. Such plan may be developed by eligible applicants for the Commission Grant Program and by individual counties, by multiple counties, by federally recognized or state-recognized Indian tribes, or by any combination of the three for the Community-based Juvenile Services Aid Program. Comprehensive juvenile services plans shall:

(a) Be developed by a comprehensive community team representing juvenile justice system stakeholders;

(b) Be based on data relevant to juvenile and family issues, including an examination of disproportionate minority contact in order to identify juvenile delinquency prevention efforts and system improvement efforts designed to reduce, without establishing or requiring numerical standards or quotas, the disproportionate number of juvenile members of minority groups who come into contact with the juvenile justice system;

(c) Identify policies and practices that are research-based or standardized and reliable and are implemented with fidelity and which have been researched and demonstrate positive outcomes;

(d) Identify clear implementation strategies; and

(e) Identify how the impact of the program or service will be measured.

(2) Any portion of the comprehensive juvenile services plan dealing with administration, procedures, and programs of the juvenile court shall not be submitted to the commission without the concurrence of the presiding judge or judges of the court or courts having jurisdiction in juvenile cases for the geographic area to be served. Programs or services established by such plans shall conform to the family policy tenets prescribed in sections 43-532 and 43-533 and shall include policies and practices that are research-based or standardized and reliable and are implemented with fidelity and which have been researched and demonstrate positive outcomes.

(3) The commission, in consultation with the University of Nebraska at Omaha, Juvenile Justice Institute, shall contract for the development and administration of a statewide system to monitor and evaluate the effectiveness of plans and programs receiving funds from (a) the Commission Grant Program and (b) the Community-based Juvenile Services Aid Program in preventing persons from entering the juvenile justice system and in rehabilitating juvenile offenders, including an examination of disproportionate minority contact in order to identify juvenile delinquency prevention efforts and system improvement efforts designed to reduce, without establishing or requiring numerical standards or quotas, the disproportionate number of juvenile members of minority groups who come into contact with the juvenile justice system.

(4) There is established within the commission the position of Director of the Community-based Juvenile Services Aid Program, appointed by the executive director of the commission. The director shall have extensive experience in developing and providing community-based services.

(5) The director shall be supervised by the executive director of the commission. The director shall:

(a) Provide technical assistance and guidance for the development of comprehensive juvenile services plans;

(b) Coordinate the review of the Community-based Juvenile Services Aid Program application as provided in section 43-2404.02 and make recommendations for the distribution of funds provided under the Community-based Juvenile Services Aid Program, giving priority to those grant applications funding programs and services that will divert juveniles from the juvenile justice system, impact and effectively treat juveniles within the juvenile justice system, and reduce the juvenile detention population or assist juveniles in transitioning from out-of-home placements to in-home treatments. The director shall ensure that no funds appropriated or distributed under the Community-based Juvenile Services Aid Program are used for purposes prohibited under subsection (3) of section 43-2404.02;

(c) Develop data collection and evaluation protocols, oversee statewide data collection, and generate an annual report on the effectiveness of juvenile services that receive funds from the Community-based Juvenile Services Aid Program, including an examination of disproportionate minority contact in order to identify juvenile delinquency prevention efforts and system improvement efforts designed to reduce, without establishing or requiring numerical standards or quotas, the disproportionate number of juvenile members of minority groups who come into contact with the juvenile justice system;

(d) Develop relationships and collaborate with juvenile justice system stakeholders, provide education and training as necessary, and serve on boards and committees when approved by the commission;

(e) Assist juvenile justice system stakeholders in developing policies and practices that are research-based or standardized and reliable and are implemented with fidelity and which have been researched and demonstrate positive outcomes, including an examination of disproportionate minority contact in order to identify juvenile delinquency prevention efforts and system improvement efforts designed to reduce, without establishing or requiring numerical standards or quotas, the disproportionate number of juvenile members of minority groups who come into contact with the juvenile justice system;

(f) Develop and coordinate a statewide working group as a subcommittee of the coalition to assist in regular strategic planning related to supporting, funding, monitoring, and evaluating the effectiveness of plans and programs receiving funds from the Community-based Juvenile Services Aid Program; and

(g) Work with the coalition in facilitating the coalition's obligations under the Community-based Juvenile Services Aid Program.

Source:Laws 2001, LB 640, § 6; Laws 2005, LB 193, § 1; Laws 2013, LB561, § 47; Laws 2016, LB746, § 21; Laws 2018, LB670, § 10.

43-2404.02. Community-based Juvenile Services Aid Program; created; use; reports.

(1) There is created a separate and distinct budgetary program within the commission to be known as the Community-based Juvenile Services Aid Program. Funding acquired from participation in the federal act, state General Funds, and funding acquired from other sources which may be used for purposes consistent with the Juvenile Services Act and the federal act shall be used to aid in the establishment and provision of community-based services for juveniles who come in contact with the juvenile justice system.

(2)(a) Ten percent of the annual General Fund appropriation to the Community-based Juvenile Services Aid Program, excluding administrative budget funds, shall be set aside for the development of a common data set and evaluation of the effectiveness of the Community-based Juvenile Services Aid Program. The intent in creating this common data set is to allow for evaluation of the use of the funds and the effectiveness of the programs or outcomes in the Community-based Juvenile Services Aid Program.

(b) The common data set shall be developed and maintained by the commission and shall serve as a primary data collection site for any intervention funded by the Community-based Juvenile Services Aid Program designed to serve juveniles and deter involvement in the formal juvenile justice system. The commission shall work with agencies and programs to enhance existing data sets. To ensure that the data set permits evaluation of recidivism and other measures, the commission shall work with the Office of Probation Administration, juvenile diversion programs, law enforcement, the courts, and others to compile data that demonstrates whether a youth has moved deeper into the juvenile justice system. The University of Nebraska at Omaha, Juvenile Justice Institute, shall assist with the development of common definitions, variables, and training required for data collection and reporting into the common data set by juvenile justice programs. The common data set maintained by the commission shall be provided to the University of Nebraska at Omaha, Juvenile Justice Institute, to assess the effectiveness of the Community-based Juvenile Services Aid Program.

(c) Providing the commission access to records and information for, as well as the commission granting access to records and information from, the common data set is not a violation of confidentiality provisions under any law, rule, or regulation if done in good faith for purposes of evaluation. Records and documents, regardless of physical form, that are obtained or produced or presented to the commission for the common data set are not public records for purposes of sections 84-712 to 84-712.09.

(d) The ten percent of the annual General Fund appropriation to the Community-based Juvenile Services Aid Program, excluding administrative budget funds, shall be appropriated as follows: In fiscal year 2015-16, seven percent shall go to the commission for development of the common data set and three percent shall go to the University of Nebraska at Omaha, Juvenile Justice Institute, for evaluation. In fiscal year 2016-17, six percent shall go to the commission for development and maintenance of the common data set and four percent shall go to the University of Nebraska at Omaha, Juvenile Justice Institute, for evaluation. Every fiscal year thereafter, beginning in fiscal year 2017-18, five percent shall go to the commission for development and maintenance of the common data set and five percent shall go to the University of Nebraska at Omaha, Juvenile Justice Institute, for evaluation.

(e) The remaining funds in the annual General Fund appropriation to the Community-based Juvenile Services Aid Program shall be apportioned as aid in accordance with a formula established in rules and regulations adopted and promulgated by the commission. The formula shall be based on the total number of residents per county and federally recognized or state-recognized Indian tribe who are twelve years of age through eighteen years of age and other relevant factors as determined by the commission. The commission may require a local match of up to forty percent from the county, multiple counties, federally recognized or state-recognized Indian tribe or tribes, or any combination of the three which is receiving aid under such program. Any local expenditures for community-based programs for juveniles may be applied toward such match requirement.

(3)(a) In distributing funds provided under the Community-based Juvenile Services Aid Program, aid recipients shall prioritize programs and services that will divert juveniles from the juvenile justice system, reduce the population of juveniles in juvenile detention and secure confinement, and assist in transitioning juveniles from out-of-home placements.

(b) Funds received under the Community-based Juvenile Services Aid Program shall be used exclusively to assist the aid recipient in the implementation and operation of programs or the provision of services identified in the aid recipient's comprehensive juvenile services plan, including programs for local planning and service coordination; screening, assessment, and evaluation; diversion; alternatives to detention; family support services; treatment services; truancy prevention and intervention programs; pilot projects approved by the commission; payment of transportation costs to and from placements, evaluations, or services; personnel when the personnel are aligned with evidence-based treatment principles, programs, or practices; contracting with other state agencies or private organizations that provide evidence-based treatment or programs; preexisting programs that are aligned with evidence-based practices or best practices; and other services that will positively impact juveniles and families in the juvenile justice system.

(i) To convert an existing juvenile detention facility or other existing structure for use as an alternative to detention as defined in section 43-245;

(ii) To invest in capital construction, including both new construction and renovations, for a facility for use as an alternative to detention; or

(iii) For the initial lease of a facility for use as an alternative to detention.

(d) Funds received under the Community-based Juvenile Services Aid Program shall not be used for the following:

(i) Construction of secure detention facilities, secure youth treatment facilities, or secure youth confinement facilities;

(ii) Capital construction or the lease or acquisition of facilities beyond the one-time use described in subdivision (3)(c) of this section;

(iii) Programs, services, treatments, evaluations, or other preadjudication services that are not based on or grounded in evidence-based practices, principles, and research, except that the commission may approve pilot projects that authorize the use of such aid; or

(iv) Office equipment, office supplies, or office space.

(e) Any aid not distributed to counties under this subsection shall be retained by the commission to be distributed on a competitive basis under the Community-based Juvenile Services Aid Program for a county, multiple counties, federally recognized or state-recognized Indian tribe or tribes, or any combination of the three demonstrating additional need in the funding areas identified in this subsection.

(f) If a county, multiple counties, or a federally recognized or state-recognized Indian tribe or tribes is denied aid under this section or receives no aid under this section, the entity may request an appeal pursuant to the appeal process in rules and regulations adopted and promulgated by the commission. The commission shall establish appeal and hearing procedures by December 15, 2014. The commission shall make appeal and hearing procedures available on its website.

(4)(a) Any recipient of aid under the Community-based Juvenile Services Aid Program shall electronically file an annual report as required by rules and regulations adopted and promulgated by the commission. Any program funded through the Community-based Juvenile Services Aid Program that served juveniles shall report data on the individual youth served. Any program that is not directly serving youth shall include program-level data. In either case, data collected shall include, but not be limited to, the following: The type of juvenile service, how the service met the goals of the comprehensive juvenile services plan, demographic information on the juveniles served, program outcomes, the total number of juveniles served, and the number of juveniles who completed the program or intervention.

(b) Any recipient of aid under the Community-based Juvenile Services Aid Program shall be assisted by the University of Nebraska at Omaha, Juvenile Justice Institute, in reporting in the common data set, as set forth in the rules and regulations adopted and promulgated by the commission. Community-based aid utilization and evaluation data shall be stored and maintained by the commission.

(c) Evaluation of the use of funds and the evidence of the effectiveness of the programs shall be completed by the University of Nebraska at Omaha, Juvenile Justice Institute, specifically:

(i) The varying rates of recidivism, as defined by rules and regulations adopted and promulgated by the commission, and other measures for juveniles participating in community-based programs; and

(ii) Whether juveniles are sent to staff secure or secure juvenile detention after participating in a program funded by the Community-based Juvenile Services Aid Program.

(5) The commission shall report annually to the Governor and the Legislature on the distribution and use of funds for aid appropriated under the Community-based Juvenile Services Aid Program. The report shall include, but not be limited to, an aggregate report of the use of the Community-based Juvenile Services Aid Program funds, including the types of juvenile services and programs that were funded, whether any recipients used the funds for a purpose described in subdivision (3)(c) of this section, demographic information on the total number of juveniles served, program success rates, the total number of juveniles sent to secure juvenile detention or residential treatment and secure confinement, and a listing of the expenditures of all counties and federally recognized or state-recognized Indian tribes for detention, residential treatment, and secure confinement. The report submitted to the Legislature shall be submitted electronically.

(6) The commission shall adopt and promulgate rules and regulations for the Community-based Juvenile Services Aid Program in consultation with the Director of the Community-based Juvenile Services Aid Program, the Director of Juvenile Diversion Programs, the Office of Probation Administration, the Nebraska Association of County Officials, and the University of Nebraska at Omaha, Juvenile Justice Institute. The rules and regulations shall include, but not be limited to:

(a) The required elements of a comprehensive juvenile services plan and planning process;

(b) The Community-based Juvenile Services Aid Program formula, review process, match requirements, and fund distribution. The distribution process shall ensure a conflict of interest policy;

(d) A plan for evaluating the effectiveness of plans and programs receiving funding;

(e) A reporting process for aid recipients;

(f) A reporting process for the commission to the Governor and Legislature. The report shall be made electronically to the Governor and the Legislature; and

(g) Requirements regarding the use of the common data set.

Source:Laws 2001, LB 640, § 7; Laws 2005, LB 193, § 2; Laws 2008, LB1014, § 54; Laws 2010, LB800, § 33; Laws 2012, LB782, § 47; Laws 2013, LB561, § 48; Laws 2014, LB464, § 30; Laws 2015, LB265, § 16; Laws 2018, LB670, § 11.

43-2404.03. Legislative intent.

It is the intent of the Legislature to appropriate five million dollars to the Community-based Juvenile Services Aid Program.

Source:Laws 2014, LB464, § 31.

43-2405. Grants under Commission Grant Program; application; requirements.

(1) An eligible applicant may apply to the coalition for a grant under the Commission Grant Program in a manner and form prescribed by the commission for funds made available from the Commission Grant Program or the federal act. The application shall include a comprehensive juvenile services plan. Grants shall be awarded to eligible applicants at least annually within the limits of available funds until programs are available statewide.

(2) Eligible applicants may give consideration to contracting with private nonprofit agencies for the provision of programs.

Source:Laws 1990, LB 663, § 5; Laws 1992, LB 447, § 9; Laws 1997, LB 424, § 3; Laws 2000, LB 1167, § 44; Laws 2001, LB 640, § 8.

43-2406. Grants; criteria.

From amounts appropriated to the commission for the Commission Grant Program or funds available through the federal act, the commission shall award grants on a competitive basis to eligible applicants based upon criteria determined by the commission.

Source:Laws 1990, LB 663, § 6; Laws 1992, LB 447, § 10; Laws 1994, LB 988, § 26; Laws 1997, LB 424, § 4; Laws 2000, LB 1167, § 45; Laws 2001, LB 640, § 9.

43-2407. Repealed. Laws 2000, LB 1167, § 56.

43-2408. Grants; use.

(1) Grants provided under the Commission Grant Program may be used for developing programs under the Juvenile Services Act.

(2) No grants from the Commission Grant Program shall be used to acquire, develop, build, or improve local correctional facilities.

Source:Laws 1990, LB 663, § 8; Laws 2000, LB 1167, § 46; Laws 2001, LB 640, § 10.

43-2409. Eligible applicants; performance review; commission; powers; use of grants; limitation.

(1) The coalition shall review periodically the performance of eligible applicants participating under the Commission Grant Program and the federal act to determine if substantial compliance criteria are being met. The commission shall establish criteria for defining substantial compliance.

(2) Grants received by an eligible applicant under the Commission Grant Program shall not be used to replace or supplant any funds currently being used to support existing programs for juveniles.

(3) Grants received under the Commission Grant Program shall not be used for capital construction or the lease or acquisition of facilities except as provided in subdivision (3)(c) of section 43-2404.02.

Source:Laws 1990, LB 663, § 9; Laws 1992, LB 447, § 11; Laws 1997, LB 424, § 6; Laws 2000, LB 1167, § 47; Laws 2001, LB 640, § 11; Laws 2018, LB670, § 12.

43-2410. Repealed. Laws 2000, LB 1167, § 56.

43-2411. Nebraska Coalition for Juvenile Justice; created; members; terms; expenses; task forces or subcommittee; authorized.

(1) The Nebraska Coalition for Juvenile Justice is created. Coalition members who are members of the judicial branch of government shall be nonvoting members of the coalition. The coalition members shall be appointed by the Governor and shall include the members required under subsection (2) or (3) of this section.

(2) Before June 15, 2018:

(a) As provided in the federal act, there shall be no less than fifteen nor more than thirty-three members of the coalition;

(b) The coalition shall include:

(i) The Administrator of the Office of Juvenile Services;

(ii) The chief executive officer of the Department of Health and Human Services or his or her designee;

(iii) The Commissioner of Education or his or her designee;

(iv) The executive director of the Nebraska Commission on Law Enforcement and Criminal Justice or his or her designee;

(v) The executive director of the Nebraska Association of County Officials or his or her designee;

(vi) The probation administrator of the Office of Probation Administration or his or her designee;

(vii) One county commissioner or supervisor;

(viii) One person with data analysis experience;

(ix) One police chief;

(x) One sheriff;

(xi) The executive director of the Foster Care Review Office;

(xii) One separate juvenile court judge;

(xiii) One county court judge;

(xiv) One representative of mental health professionals who works directly with juveniles;

(xv) Three representatives, one from each congressional district, from community-based, private nonprofit organizations who work with juvenile offenders and their families;

(xvi) One volunteer who works with juvenile offenders or potential juvenile offenders;

(xvii) One person who works with an alternative to a detention program for juveniles;

(xviii) The director or his or her designee from a youth rehabilitation and treatment center;

(xix) The director or his or her designee from a secure juvenile detention facility;

(xx) The director or his or her designee from a staff secure youth confinement facility;

(xxi) At least five members who are under twenty-four years of age when appointed;

(xxii) One person who works directly with juveniles who have learning or emotional difficulties or are abused or neglected;

(xxiii) One member of the Nebraska Commission on Law Enforcement and Criminal Justice;

(xxiv) One member of a regional behavioral health authority established under section 71-808;

(xxv) One county attorney; and

(xxvi) One public defender;

(c) A majority of the coalition members, including the chairperson, shall not be full-time employees of federal, state, or local government. At least one-fifth of the coalition members shall be under the age of twenty-four years at the time of appointment; and

(d) Except as provided in subsection (4) of this section, the terms of members appointed pursuant to subdivisions (2)(b)(vii) through (2)(b)(xxvi) of this section shall be three years, except that the terms of the initial appointments of members of the coalition shall be staggered so that one-third of the members are appointed for terms of one year, one-third for terms of two years, and one-third for terms of three years, as determined by the Governor.

(3) On and after June 15, 2018, the coalition shall include:

(a) The chief executive officer of the Department of Health and Human Services or his or her designee;

(b) The Commissioner of Education or his or her designee;

(d) The executive director of the Nebraska Association of County Officials or his or her designee;

(e) The probation administrator of the Office of Probation Administration or his or her designee;

(f) One county commissioner or supervisor;

(g) One representative from law enforcement;

(h) The executive director of the Foster Care Review Office;

(i) One separate juvenile court judge;

(j) One county court judge;

(k) Three representatives, one from each congressional district, from community-based, private nonprofit organizations who work with juvenile offenders and their families;

(l) The director or his or her designee from a secure juvenile detention facility or a staff secure youth confinement facility;

(m) At least one member who is under twenty-four years of age when appointed, with juvenile justice experience preferred;

(n) One at-large member;

(o) One member of a regional behavioral health authority established under section 71-808;

(p) One county attorney; and

(q) One juvenile public defender or defense attorney.

(4)(a) Except as provided in subdivisions (c) through (e) of this subsection, members of the coalition serving prior to June 15, 2018, shall continue to serve on the coalition as representatives of the entity they were appointed to represent until their current terms of office expire and their successors are appointed and confirmed.

(b) The terms of the members appointed pursuant to subdivisions (3)(f) through (3)(q) of this section shall be three years.

(c) The positions created pursuant to subdivisions (2)(b)(i), (viii), (x), (xiv), (xvi), (xvii), (xviii), (xx), (xxii), and (xxiii) of this section shall cease to exist on June 15, 2018.

(d) The police chief appointed pursuant to subdivision (2)(b)(ix) of this section shall continue to serve until the representative from law enforcement under subdivision (3)(g) of this section is appointed.

(e) The director or his or her designee from a secure juvenile detention facility appointed pursuant to subdivision (2)(b)(xix) of this section shall continue to serve until the member under subdivision (3)(l) of this section is appointed.

(5) Any vacancy on the coalition shall be filled by appointment by the Governor. The coalition shall select a chairperson, a vice-chairperson, and such other officers as it deems necessary.

(6) Members of the coalition shall be reimbursed for expenses pursuant to sections 81-1174 to 81-1177.

(7) The coalition may appoint task forces or subcommittees to carry out its work. Task force and subcommittee members shall have knowledge of, responsibility for, or interest in an area related to the duties of the coalition.

Source:Laws 1990, LB 663, § 11; Laws 1996, LB 1044, § 209; Laws 1997, LB 424, § 8; Laws 2000, LB 1167, § 48; Laws 2007, LB296, § 138; Laws 2013, LB561, § 49; Laws 2018, LB670, § 13; Laws 2020, LB381, § 32.

43-2412. Coalition; powers and duties.

(1) Consistent with the purposes and objectives of the Juvenile Services Act and the federal act, the coalition shall:

(a) Make recommendations to the commission on the awarding of grants under the Commission Grant Program to eligible applicants;

(b) Prepare at least one report annually to the Governor, the Legislature, the Office of Probation Administration, and the Office of Juvenile Services. The report submitted to the Legislature shall be submitted electronically;

(d) Meet at least two times each year.

(2) Consistent with the purposes and objectives of the acts and within the limits of available time and appropriations, the coalition may:

(a) Assist and advise state and local agencies in the establishment of volunteer training programs and the utilization of volunteers;

(b) Apply for and receive funds from federal and private sources for carrying out its powers and duties;

(d) Identify juvenile justice issues, share information, and monitor and evaluate programs in the juvenile justice system; and

(e) Recommend guidelines and supervision procedures to be used to develop or expand local diversion programs for juveniles from the juvenile justice system.

(3) In formulating, adopting, and promulgating the recommendations and guidelines provided for in this section, the coalition shall consider the differences among counties in population, in geography, and in the availability of local resources.

Source:Laws 1990, LB 663, § 12; Laws 1992, LB 447, § 12; Laws 1997, LB 424, § 9; Laws 2000, LB 1167, § 49; Laws 2001, LB 640, § 12; Laws 2012, LB782, § 48; Laws 2013, LB561, § 50; Laws 2018, LB670, § 14.

43-2413. Repealed. Laws 2018, LB670, § 21.

43-2414. Repealed. Laws 2007, LB 296, § 815.

43-2501. Act, how cited.

Sections 43-2501 to 43-2516 shall be known and may be cited as the Early Intervention Act.

Source:Laws 1991, LB 701, § 1; Laws 1993, LB 520, § 1.

43-2502. Legislative intent.

It is the intent of the Legislature to assist in securing early intervention services to infants or toddlers with disabilities and their families in accordance with the federal early intervention program and whenever possible in concert with the family policy objectives prescribed in sections 43-532 and 43-533 and federal and state initiatives. Such services are necessary to:

(1) Enhance the development of infants and toddlers with disabilities;

(2) Reduce the costs to our society by minimizing the need for special services, including special education and related services, after such infants or toddlers reach school age;

(3) Minimize the likelihood of institutionalization of persons with disabilities and maximize their potential for independent living in society;

(4) Enhance the capacity of families to meet the needs of their infants or toddlers with disabilities;

(5) Strengthen, promote, and empower families to determine the most appropriate use of resources to address the unique and changing needs of families and their infants or toddlers with disabilities; and

(6) Enhance the capacity of state and local agencies and service providers to identify, evaluate, and meet the needs of historically underrepresented populations, particularly minority, low-income, and rural populations.

Source:Laws 1991, LB 701, § 2; Laws 1993, LB 520, § 6; Laws 2016, LB746, § 22.

43-2502.01. General findings and declarations.

The Legislature hereby finds and declares that: (1) All families have strengths; (2) families strengthen communities; (3) families are the primary decisionmakers for their children; and (4) all families have needs that change over time and require the support of their communities.

Source:Laws 1993, LB 520, § 2.

43-2502.02. Legislative findings.

The Legislature further finds that: (1) Many state initiatives for improving or reforming the current service delivery systems for children and their families have been identified and are currently underway within Nebraska; (2) there is a need to facilitate coordination and promote communication across these efforts to identify common visions and approaches and to establish linkages across health, social services, family support services, mental health, and education initiatives at the state and community levels; and (3) these initiatives need continued support and nurturing in order to empower communities and families and to provide and promote an integrated service delivery system.

Source:Laws 1993, LB 520, § 3.

43-2502.03. Legislative declarations.

The Legislature declares that it shall be the policy of the State of Nebraska to promote the development of a statewide system of comprehensive, coordinated, family-centered, community-based, and culturally competent services for children and their families to assure that services help build strong families and provide appropriate environments prenatally and for children from birth through their early years in programs and services which are:

(1) Family-centered, recognizing that parents have the primary responsibility for their children's development and learning and that programs must recognize and support the role of parents through family-friendly criteria in planning their structure, services, staffing, and delivery;

(2) Comprehensive, recognizing that services must include attention to all aspects of the child and family and address needed health and nutrition, education, family support, and social services. Such a service system should allow families to choose the services they need with minimal costs and requirements;

(3) Coordinated, recognizing that collaboration among the state agencies and variety of private and community programs and services is required to assure that comprehensive child and family needs are met and that the most efficient use is made of public resources, community services, and informal support systems of families;

(4) Quality, recognizing that outcomes for children in the early years are strengthened when programs and services display indicators of quality, including developmentally appropriate practices, extensive family involvement, trained staff, and culturally responsive approaches;

(5) Inclusive, recognizing that all children benefit when they have optimum opportunities to interact with peer groups of children with diverse backgrounds and characteristics; and

(6) Equitable, recognizing that program practices strive for potential achievement of all children including children from minority groups, with disabilities, from less advantaged backgrounds, and from less populated geographic areas.

Source:Laws 1993, LB 520, § 4.

43-2502.04. Declaration of policy.

The Legislature further declares that it shall be the policy of the State of Nebraska, through the implementation of the Early Intervention Act, to promote, facilitate, and support:

(1) Healthy families, enhancing the well-being of each family member as well as that of the family as a unit and encouraging family independence and decisionmaking about the future of their children;

(2) Service systems which are responsive, flexible, integrated, and accessible to children and their families;

(3) Community ownership, recognizing that families live and children grow up in communities, that programs are implemented in communities, and that all families need supportive communities; and

(4) Maximum impact of prevention and early intervention, encouraging and supporting active parent and family partnership in all programs and services.

Source:Laws 1993, LB 520, § 5.

43-2503. Purposes of act.

The purposes of the Early Intervention Act shall be to:

(1) Develop and implement a statewide system of comprehensive, coordinated, family-centered, community-based, and culturally competent early intervention services for infants or toddlers with disabilities and their families through the collaboration of the Department of Health and Human Services, the State Department of Education, and all other relevant agencies or organizations at the state, regional, and local levels;

(2) Establish and implement a billing system for accessing federal medicaid funds;

(3) Establish and implement services coordination through a community team approach;

(4) Facilitate the coordination of payment for early intervention services from federal, state, local, and private sources including public and private insurance coverage; and

(5) Enhance Nebraska's capacity to provide quality early intervention services and expand and improve existing early intervention services being provided to eligible infants or toddlers with disabilities and their families.

Source:Laws 1991, LB 701, § 3; Laws 1993, LB 520, § 7; Laws 1996, LB 1044, § 210; Laws 2007, LB296, § 139.

43-2504. Repealed. Laws 1993, LB 520, § 31.

43-2505. Terms, defined.

For purposes of the Early Intervention Act:

(1) Collaborating agencies means the Department of Health and Human Services and the State Department of Education;

(2) Developmental delay has the definition found in section 79-1118.01;

(3) Early intervention services may include services which:

(a) Are designed to meet the developmental needs of each eligible infant or toddler with disabilities and the needs of the family related to enhancing the development of their infant or toddler;

(b) Are selected in collaboration with the parent or guardian;

(d) Meet all applicable federal and state standards; and

(e) Are provided, to the maximum extent appropriate, in natural environments including the home and community settings in which infants and toddlers without disabilities participate;

(4) Eligible infant or toddler with disabilities means a child who needs early intervention services and is two years of age or younger, except that toddlers who reach age three during the school year shall remain eligible throughout that school year. The need for early intervention services is established when the infant or toddler experiences developmental delays or any of the other disabilities described in the Special Education Act;

(5) Federal early intervention program means the federal early intervention program for infants and toddlers with disabilities, 20 U.S.C. 1471 to 1485;

(6) Individualized family service plan means the process, periodically documented in writing, of determining appropriate early intervention services for an eligible infant or toddler with disabilities and his or her family;

(7) Interagency planning team means an organized group of interdisciplinary, interagency representatives, community leaders, and family members in each local community or region;

(8) Lead agency or agencies means the Department of Health and Human Services, the State Department of Education, and any other agencies designated by the Governor for general administration, supervision, and monitoring of programs and activities receiving federal funds under the federal early intervention program and state funds appropriated for early intervention services under the Early Intervention Act; and

(9) Services coordination means a flexible process of interaction facilitated by a services coordinator to assist the family of an eligible infant or toddler with disabilities within a community to identify and meet their needs pursuant to the act. Services coordination under the act shall not duplicate any case management services which an eligible infant or toddler with disabilities and his or her family are already receiving or eligible to receive from other sources.

Source:Laws 1991, LB 701, § 4; Laws 1993, LB 520, § 8; Laws 1996, LB 900, § 1048; Laws 1996, LB 1044, § 211; Laws 1997, LB 346, § 1; Laws 1999, LB 813, § 2; Laws 2000, LB 1135, § 9; Laws 2006, LB 994, § 56; Laws 2007, LB296, § 140.

Cross References

Special Education Act, see section 79-1110.

43-2506. Repealed. Laws 2000, LB 1135, § 34.

43-2507. Collaborating agency; statewide system; components; duties; sharing information and data.

(1) Planning for early intervention services shall be the responsibility of each collaborating agency. The planning shall address a statewide system of comprehensive, coordinated, family-centered, community-based, and culturally competent early intervention services to all eligible infants or toddlers with disabilities and their families in Nebraska. The statewide system shall include the following minimum components:

(a) A public awareness program, including a central directory;

(b) A comprehensive early identification system, including a system for identifying children and making referrals for infants or toddlers who may be eligible for early intervention services;

(c) Common intake, referral, and assessment processes, procedures, and forms to determine eligibility of infants and toddlers and their families referred for early intervention services;

(d) An individualized family service plan, including services coordination, for each eligible infant or toddler with disabilities and his or her family;

(e) A comprehensive system of personnel development;

(f) A uniform computer database and reporting system which crosses agency lines; and

(g) Services coordination to access the following early intervention services: Audiology; family training, counseling, and home visits; health services; medical services only for diagnostic or evaluation purposes; nursing services; nutrition services; occupational therapy; physical therapy; psychological services; social work services; special instruction; speech-language pathology; transportation and related costs that are necessary to enable an eligible infant or toddler with disabilities and his or her family to receive early intervention services; assistive technology devices and assistive technology services; vision services; and hearing services.

(2) Collaborating agencies shall review standards to ensure that personnel are appropriately and adequately prepared and trained to carry out the Early Intervention Act.

(3) Collaborating agencies shall be responsible for designing, supporting, and implementing a statewide training and technical assistance plan which shall address preservice, inservice, and leadership development for service providers and parents of eligible infants and toddlers with disabilities.

(4) Policies and procedures shall be jointly examined and analyzed by the collaborating agencies to satisfy data collection requirements under the federal early intervention program and to assure the confidentiality of the data contained in the statewide system. Notwithstanding any other provision of state law, the collaborating agencies shall be permitted to share information and data necessary to carry out the provisions of the federal early intervention program, including the personal identification or other specific information concerning individual infants, toddlers, or their families, except that the vital and medical records and health information concerning individuals provided to the Department of Health and Human Services may be released only under the laws authorizing the provision of such records and information. Nothing in this section shall prohibit the use of such data to provide for the preparation of reports, fiscal information, or other documents required by the Early Intervention Act, but no information in such reports, fiscal information, or other documents shall be used in a manner which would allow for the personal identification of an individual infant, toddler, or family.

Source:Laws 1991, LB 701, § 6; Laws 1993, LB 520, § 10; Laws 1996, LB 1044, § 212; Laws 2006, LB 994, § 57; Laws 2007, LB296, § 141.

43-2507.01. Eligible infants and toddlers with disabilities; entitlements.

(1) Infants or toddlers who are referred because of possible disabilities shall be entitled, at no cost to their families, to early identification of eligible infants or toddlers, evaluation and assessment in order to determine eligibility under the Special Education Act, and procedural safeguards.

(2) By June 1, 1995, eligible infants or toddlers with disabilities shall also be entitled, at no cost to their families, to services coordination and development of the individualized family service plan.

(3) For other early intervention services not mandated under the Special Education Act and not paid through any other source, including, but not limited to, insurance, medicaid, or other third-party payor, payment for such services shall be the responsibility of the parent, guardian, or other person responsible for the eligible infant or toddler.

(4) Except for services coordination, the Early Intervention Act shall not be construed to create new early intervention or family services or establish an entitlement to such new services.

Source:Laws 1993, LB 520, § 11.

Cross References

Special Education Act, see section 79-1110.

43-2507.02. State Department of Education; duties.

The State Department of Education shall maintain its responsibility under the Special Education Act regarding special education and related services and may adopt and promulgate rules and regulations pursuant to section 43-2516 that meet the requirements of subchapter III of the federal Individuals with Disabilities Education Act, 20 U.S.C. 1431 to 1445, as such act and sections existed on January 1, 2013, and the regulations adopted thereunder. The department shall provide grants for the costs of such programs to the school district of residence as provided in section 79-1132.

Source:Laws 1993, LB 520, § 12; Laws 1996, LB 900, § 1049; Laws 2013, LB410, § 1.

Cross References

Special Education Act, see section 79-1110.

43-2508. Department of Health and Human Services; duties.

(1) The Department of Health and Human Services shall be responsible for providing or contracting for services.

(2) Whenever possible, the medical assistance program prescribed in the Medical Assistance Act shall be used for payment of services coordination.

(3) It is the intent of this section that the department shall apply for and implement a Title XIX medicaid waiver as a way to assist in the provision of services coordination to eligible infants or toddlers with disabilities and their families.

Source:Laws 1991, LB 701, § 7; Laws 1993, LB 520, § 13; Laws 1996, LB 1044, § 213; Laws 2006, LB 994, § 58; Laws 2006, LB 1248, § 55; Laws 2007, LB296, § 142.

Cross References

Medical Assistance Act, see section 68-901.

43-2509. Department of Health and Human Services; duties.

The Department of Health and Human Services is responsible for incorporating components required under the federal early intervention program into the state plans developed for the Special Supplemental Nutrition Program for Women, Infants, and Children, the Commodity Supplemental Food Program, the maternal and child health program, and the developmental disabilities program. The department shall provide technical assistance, planning, and coordination related to the incorporation of such components.

Source:Laws 1991, LB 701, § 8; Laws 1993, LB 520, § 14; Laws 1996, LB 1044, § 214; Laws 2006, LB 994, § 59; Laws 2007, LB296, § 143.

43-2510. Department of Health and Human Services; duties.

The Department of Health and Human Services is responsible for incorporating components required under the federal early intervention program into the mental health and developmental disabilities planning responsibilities of the department. The department shall provide technical assistance, planning, and coordination related to the incorporation of such components.

Source:Laws 1991, LB 701, § 9; Laws 1993, LB 520, § 15; Laws 1996, LB 1044, § 215; Laws 2006, LB 994, § 60; Laws 2007, LB296, § 144.

43-2511. Statewide billing system; establishment; participation required; implementation and administrative costs; how treated.

There is hereby established a statewide billing system for accessing federal medicaid funds for special education and related services provided by school districts. The system shall apply to all students verified with disabilities from date of diagnosis to twenty-one years of age as allowed under the federal Medicare Catastrophic Coverage Act of 1988. The system shall be developed, implemented, and administered jointly by the Department of Health and Human Services and the State Department of Education. On or before October 1, 2015, the Department of Health and Human Services and the State Department of Education shall jointly revise the statewide billing system to streamline and simplify the claims process, to update reimbursement rates, and to incorporate services included in the state plan amendment submitted pursuant to subsection (4) of section 68-911. After the reimbursement rates have been updated pursuant to this section, such rates shall be reviewed at least once every five years. School districts, educational service units, or approved cooperatives providing special education and related services shall be required to participate in the statewide billing system. Eleven and fifty-four hundredths percent of federal medicaid funds received by school districts pursuant to such billing system shall be considered reimbursement for the costs to school districts associated with the implementation and administration of such a system, and such costs shall be included in the medicaid reimbursement rates to be established for each service. From the amount provided pursuant to section 43-2515 to aid in carrying out the Early Intervention Act, the Department of Health and Human Services shall retain, for the purposes of implementing and administering the statewide billing system and early intervention services coordination services, an amount equal to the lesser of the actual cost of implementing and administering the statewide billing system and early intervention services coordination services or (1) for fiscal year 2014-15, two hundred forty-two thousand dollars, (2) for fiscal year 2015-16, three hundred thousand dollars, or (3) for fiscal year 2016-17 and each fiscal year thereafter, the amount retained for such purposes for the prior year increased by five percent.

Source:Laws 1991, LB 701, § 10; Laws 1993, LB 520, § 16; Laws 1996, LB 1044, § 216; Laws 2007, LB296, § 145; Laws 2014, LB276, § 1.

43-2511.01. Statewide services coordination system; development; implementation.

The lead agencies shall develop and implement a statewide services coordination system for eligible infants or toddlers with disabilities and their families pursuant to the Early Intervention Act. The amount and duration of services coordination shall be based on need, as specified on the individualized family service plan. Services coordination under the act shall not duplicate any case management services which an eligible infant or toddler with disabilities and his or her family are already receiving or eligible to receive from whatever source.

Source:Laws 1993, LB 520, § 17.

43-2512. Interagency planning team; members; duties; Department of Health and Human Services; provide services coordination.

Each region established pursuant to section 79-1135 shall establish an interagency planning team, which planning team shall include representatives from school districts, social services, health and medical services, parents, and mental health, developmental disabilities, Head Start, and other relevant agencies or persons serving children from birth to age five and their families and parents or guardians. Each interagency planning team shall be responsible for assisting in the planning and implementation of the Early Intervention Act in each local community or region. The Department of Health and Human Services, in collaboration with each regional interagency planning team, shall provide or contract for services coordination.

Source:Laws 1991, LB 701, § 11; Laws 1993, LB 520, § 18; Laws 1996, LB 900, § 1050; Laws 1996, LB 1044, § 217; Laws 2006, LB 994, § 61; Laws 2007, LB296, § 146.

43-2513. Special grant funds; designation.

For purposes of the general fund budget of expenditures as defined in section 79-1003, funds received to carry out the services coordination functions or designated as reimbursement for costs associated with the implementation and administration of the billing system pursuant to section 43-2511 shall be considered special grant funds.

Source:Laws 1991, LB 701, § 12; Laws 1993, LB 520, § 19; Laws 1994, LB 1290, § 1; Laws 1995, LB 840, § 1; Laws 1996, LB 900, § 1051; Laws 2014, LB276, § 2.

43-2514. Repealed. Laws 1993, LB 520, § 31.

43-2515. Federal medicaid funds; certification; appropriations; legislative intent.

For years 1993 through 2015, on or before October 1, the Department of Health and Human Services and the State Department of Education shall jointly certify to the budget administrator of the budget division of the Department of Administrative Services the amount of federal medicaid funds paid to school districts pursuant to the Early Intervention Act for special education services for children five years of age and older for the immediately preceding fiscal year. The General Fund appropriation to the State Department of Education for state special education aid for the then-current fiscal year shall be decreased by an amount equal to the amount that would have been reimbursed with state general funds to the school districts through the special education reimbursement process for special education services for children five years of age and older that was paid to school districts or approved cooperatives with federal medicaid funds.

For fiscal years through fiscal year 2015-16, it is the intent of the Legislature that an amount equal to the amount that would have been reimbursed with state general funds to the school districts, certified to the budget administrator, be appropriated from the General Fund to aid in carrying out the provisions of the Early Intervention Act and other related early intervention services.

For 2015 and each year thereafter, on or before December 1, the Department of Health and Human Services and the State Department of Education shall jointly certify to the budget administrator of the budget division of the Department of Administrative Services the aggregate amount to be included in the local system formula resources pursuant to subdivision (15) of section 79-1018.01 for all local systems for aid to be calculated pursuant to the Tax Equity and Educational Opportunities Support Act for the next school fiscal year.

For fiscal year 2016-17 and each fiscal year thereafter, it is the intent of the Legislature that, in addition to other state and federal funds used to carry out the Early Intervention Act, funds equal to the lesser of the amount certified to the budget administrator or the amount appropriated or transferred for such purposes pursuant to this section for the immediately preceding fiscal year increased by five percent be appropriated from the General Fund to aid in carrying out the provisions of the Early Intervention Act and other related early intervention services.

Source:Laws 1993, LB 520, § 20; Laws 1996, LB 1044, § 218; Laws 1998, Spec. Sess., LB 1, § 4; Laws 2007, LB296, § 147; Laws 2014, LB276, § 3; Laws 2016, LB1067, § 6.

Cross References

Tax Equity and Educational Opportunities Support Act, see section 79-1001.

43-2516. Rules and regulations.

The lead agencies shall adopt and promulgate rules and regulations pursuant to the Early Intervention Act.

Source:Laws 1993, LB 520, § 21.

43-2601. Quality Child Care Act, how cited.

Sections 43-2601 to 43-2625 shall be known and may be cited as the Quality Child Care Act.

Source:Laws 1991, LB 836, § 1; Laws 1995, LB 401, § 2.

43-2602. Legislative intent.

It is the intent of the Legislature to promote the growth and development of a comprehensive child care system which meets the needs of families in Nebraska by encouraging high-quality, affordable, and accessible child care services that are educationally and developmentally appropriate. The Legislature finds that existing child care resources are inadequate to meet the need for services and that high-quality services can substantially increase the well-being of children and families.

Source:Laws 1991, LB 836, § 2.

43-2603. Legislative declarations.

The Legislature declares that it shall be the policy of the State of Nebraska to:

(1) Recognize the family as the most important social and economic unit of society and support the central role parents play in raising children. All parents are encouraged to care for and nurture their children through the traditional methods of parental care at home. However, to the extent early childhood care and education and school-age-care programs are used, parents are encouraged to participate fully in the effort to improve the quality of such programs;

(2) Promote a variety of culturally and developmentally appropriate child care programs of high quality;

(3) Promote the growth, development, and safety of children by working with community groups and agencies, including providers and parents, to establish standards for high-quality programs, training of providers, fair and equitable monitoring, and salary levels commensurate with provider responsibilities and support services;

(4) Promote equal access to high-quality, affordable, and socioeconomically integrated programs for all children and families; and

(5) Facilitate broad community and private sector involvement in the provision of high-quality programs to foster economic development and assist business.

The Legislature supports the full integration of children with special needs into the same child care environments serving children with no identified handicapping conditions.

The Legislature also finds that family child care homes should be the primary focus in upgrading child care programs in Nebraska at this time. There is a need for a larger, more visible, and better trained supply of family child care homes.

Source:Laws 1991, LB 836, § 3; Laws 1995, LB 401, § 3.

43-2604. Legislative findings and priorities.

The Legislature finds that since the majority of children of prekindergarten age will continue to be served in private child care settings and programs, an investment of public resources in upgrading the training levels of staff will be an investment in all the children of the state. Coordination of existing training opportunities offered by agencies would greatly enhance the ability of providers in local communities to gain access to relevant training and would also enhance efforts to provide training which is sensitive to local needs. The Legislature also finds that training which brings together staff from various programs can provide a setting in which to initiate and promote collaborative efforts at the local level.

The Legislature finds that the highest priority need for training is for family child care home providers.

The Legislature further finds that the funding provided by the federal Child Care and Development Block Grant Act of 1990 will provide significant new funding to improve child care and early childhood education and school-age care in Nebraska.

Source:Laws 1991, LB 836, § 4; Laws 1995, LB 401, § 4.

43-2605. Terms, defined.

For purposes of the Quality Child Care Act:

(1) Child care shall mean the care and supervision of children in lieu of parental care and supervision and shall include programs; and

(2) Programs shall mean the programs listed in subdivision (2) of section 71-1910.

Source:Laws 1991, LB 836, § 5; Laws 1995, LB 401, § 5; Laws 2007, LB296, § 148.

43-2606. Providers of child care and school-age-care programs; training requirements; use of Nebraska Early Childhood Professional Record System.

(1) The Department of Health and Human Services shall adopt and promulgate rules and regulations for mandatory training requirements for providers of child care and school-age-care programs. Such requirements shall include preservice orientation and at least four hours of annual inservice training. All child care programs required to be licensed under section 71-1911 shall show completion of a preservice orientation approved or delivered by the department prior to receiving a provisional license.

(2) Beginning January 1, 2020, for programs that report to the Nebraska Early Childhood Professional Record System created under section 71-1962, the department shall use the Nebraska Early Childhood Professional Record System to (a) document the training levels of staff in specific child care settings to assist parents in selecting optimal care settings and (b) verify minimum training requirements of employees of such programs.

(3) The training requirements shall be designed to meet the health, safety, and developmental needs of children and shall be tailored to the needs of licensed providers of child care programs. Preservice orientation and the training requirements for providers of child care programs shall include, but not be limited to, information on sudden unexpected infant death syndrome, abusive head trauma in infants and children, crying plans, and child abuse.

(4) The department shall provide or arrange for training opportunities throughout the state and shall provide information regarding training opportunities to all providers of child care programs at the time of registration or licensure, when renewing a registration, or on a yearly basis following licensure.

(5) Each provider of child care and school-age-care programs receiving orientation or training shall provide his or her social security number to the department.

(6) The department shall review and provide recommendations to the Governor for updating rules and regulations adopted and promulgated under this section at least every five years.

Source:Laws 1991, LB 836, § 6; Laws 1995, LB 401, § 6; Laws 1996, LB 1044, § 219; Laws 1997, LB 307, § 89; Laws 1997, LB 310, § 2; Laws 1997, LB 752, § 106; Laws 1999, LB 594, § 22; Laws 1999, LB 828, § 4; Laws 2006, LB 994, § 62; Laws 2007, LB296, § 149; Laws 2018, LB717, § 1; Laws 2019, LB60, § 1; Laws 2019, LB590, § 1.

43-2607. Early Childhood Program Training Fund; created; use; investment; contracts authorized.

There is hereby created the Early Childhood Program Training Fund. The fund shall be administered by the State Department of Education and shall be used to enhance, provide, and coordinate training for providers of programs. Emphasis shall be placed on the coordination of and dissemination of information about existing training opportunities. Such training may include:

(1) Programs targeted to parents needing or using child care to assist them in selecting optimum child care settings;

(2) Specialized training regarding the care of children with special needs; and

(3) Programs concerning health, safety, or developmental needs of children.

The department may contract with any public or private entity to provide such training. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1991, LB 836, § 7; Laws 1994, LB 1066, § 28; Laws 1995, LB 401, § 7.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-2608. Toll-free hotline for providers; established.

The Department of Health and Human Services shall establish a statewide toll-free hotline to provide immediate responses to the needs of providers of programs. Such hotline may be operated by the department, or the department may contract with a state agency or with any other public or private entity capable of providing such service to operate the hotline.

Source:Laws 1991, LB 836, § 8; Laws 1995, LB 401, § 8; Laws 1996, LB 1044, § 220; Laws 1997, LB 307, § 90.

43-2609. Family child care homes; voluntary registration; department; powers and duties; payments; restricted.

(1) The Legislature finds that a system of voluntary registration would provide a mechanism for participation in the food programs offered by the United States Department of Agriculture, for eligibility to receive funds under the federal Child Care Subsidy program, for support and assistance to unlicensed family child care home providers, and for voluntary participation in training.

(2) The Department of Health and Human Services shall institute a system of voluntary registration for family child care homes not required to be licensed under section 71-1911. The department shall promulgate standards for such voluntary registration. The application for registration shall include the applicant's social security number. The department shall not make payments for child care, from any state or federal funds, to any family child care home provider not voluntarily registered under this section.

(3) The department shall issue a certificate of registration to any family child care home provider registered pursuant to this section.

(4) For purposes of implementing voluntary registration, the department may contract with family child care home associations or full-service community-based agencies to carry out such voluntary registration procedures for the department.

Source:Laws 1991, LB 836, § 9; Laws 1995, LB 401, § 9; Laws 1996, LB 1044, § 221; Laws 1997, LB 307, § 91; Laws 1997, LB 752, § 107.

43-2610. Repealed. Laws 2000, LB 1135, § 34.

43-2611. Repealed. Laws 2000, LB 1135, § 34.

43-2612. Repealed. Laws 2000, LB 1135, § 34.

43-2613. Repealed. Laws 2000, LB 1135, § 34.

43-2614. Repealed. Laws 2000, LB 1135, § 34.

43-2615. Repealed. Laws 2000, LB 1135, § 34.

43-2616. Family child care home; location.

Notwithstanding any other provision of law, including section 71-1914, family child care homes licensed by the Department of Health and Human Services pursuant to section 71-1911 or by a city, village, or county pursuant to subsection (2) of section 71-1914 may be established and operated in any residential zone within the exercised zoning jurisdiction of any city or village.

Source:Laws 1991, LB 836, § 16; Laws 1995, LB 401, § 16; Laws 1996, LB 1044, § 227; Laws 1997, LB 307, § 97; Laws 1999, LB 594, § 25; Laws 2007, LB296, § 150.

43-2617. Program provider; communicable disease; notice to parents.

A provider of a program shall notify the parents of enrolled children of the outbreak of any communicable disease in any child in the program on the same day the provider is informed of or observes the outbreak. The Department of Health and Human Services shall develop appropriate procedures to carry out this section.

Source:Laws 1991, LB 836, § 17; Laws 1995, LB 401, § 17; Laws 1996, LB 1044, § 228; Laws 1997, LB 307, § 98; Laws 2007, LB296, § 151.

43-2618. Family child care homes; inspections.

All family child care homes which are registered pursuant to section 43-2609 shall be inspected within sixty days of registration. All family child care homes registered under section 43-2609 shall be inspected at least every two years after the initial inspection. It is the intent of the Legislature that registered family child care homes be inspected annually if sufficient funds are made available under the federal Child Care and Development Block Grant Act of 1990 for such purposes.

Source:Laws 1991, LB 836, § 18; Laws 1995, LB 401, § 18; Laws 1997, LB 310, § 3; Laws 2014, LB1050, § 1.

43-2619. Office for child development and early childhood education services.

There is hereby created within the State Department of Education an office for child development and early childhood education services.

Source:Laws 1991, LB 836, § 19.

43-2620. Collaboration of activities; duties.

The Department of Health and Human Services and the State Department of Education shall collaborate in their activities and may:

(1) Encourage the development of comprehensive systems of child care programs and early childhood education programs which promote the wholesome growth and educational development of children, regardless of the child's level of ability;

(2) Encourage and promote the provision of parenting education, developmentally appropriate activities, and primary prevention services by program providers;

(3) Facilitate cooperation between the private and public sectors in order to promote the expansion of child care;

(4) Promote continuing study of the need for child care and early childhood education and the most effective methods by which these needs can be served through governmental and private programs;

(5) Coordinate activities with other state agencies serving children and families;

(6) Strive to make the state a model employer by encouraging the state to offer a variety of child care benefit options to its employees;

(7) Provide training for early childhood education providers as authorized in sections 79-1101 to 79-1103;

(8) Develop and support resource and referral services for parents and providers that will be in place statewide by January 1, 1994;

(9) Promote the involvement of businesses and communities in the development of child care throughout the state by providing technical assistance to providers and potential providers of child care;

(10) Establish a voluntary accreditation process for public and private child care and early childhood education providers, which process promotes program quality;

(11) At least biennially, develop an inventory of programs and early childhood education programs provided to children in Nebraska and identify the number of children receiving and not receiving such services, the types of programs under which the services are received, and the reasons children not receiving the services are not being served; and

(12) Support the identification and recruitment of persons to provide child care for children with special needs.

Source:Laws 1991, LB 836, § 20; Laws 1995, LB 401, § 19; Laws 1996, LB 900, § 1052; Laws 1996, LB 1044, § 229; Laws 1997, LB 307, § 99; Laws 1999, LB 594, § 26; Laws 2000, LB 1135, § 10; Laws 2007, LB296, § 152.

43-2620.01. State Board of Education; voluntary accreditation process; rules and regulations.

The State Board of Education may adopt and promulgate reasonable rules and regulations to establish the voluntary accreditation process referred to in subdivision (10) of section 43-2620.

Source:Laws 1995, LB 401, § 21.

43-2621. Block grant funds; use.

(1) Funds provided to the State of Nebraska pursuant to the Child Care and Development Block Grant Act of 1990, 42 U.S.C. 9857 et seq., as such act and sections existed on January 1, 2015, shall be used to implement the Quality Child Care Act, except as provided in subsections (3) and (4) of this section.

(2) The Legislature finds that the reservations and allocations contained in subsections (3) and (4) of this section are made pursuant to the 2014 reauthorization of such federal act. The Legislature also finds that such reservations and allocations are designed to improve the quality of child care services and increase parental options for, and access to, high-quality child care and are in alignment with its comprehensive system of child care and early education programs.

(3)(a)(i) Beginning October 1, 2015, the Department of Health and Human Services shall increase its reservation of federal funds received from the child care and development block grant under such federal act from four percent to seven percent for activities relating to the quality of child care services.

(ii) Beginning October 1, 2017, the department shall increase its reservation of federal funds received from such block grant from seven percent to eight percent for activities relating to the quality of child care services.

(iii) Beginning October 1, 2019, the department shall increase its reservation of federal funds received from such block grant from eight percent to nine percent for activities relating to the quality of child care services.

(b) In addition to the percentages reserved in subdivision (3)(a) of this section for activities relating to the quality of child care services, beginning October 1, 2016, the department shall reserve three percent of the federal funds received from such block grant for activities relating to the quality of care for infants and toddlers.

(4)(a)(i) Beginning October 1, 2015, the increase from four percent to seven percent in reservation of federal funds for activities relating to the quality of child care services described in subdivision (3)(a)(i) of this section shall be allocated for quality rating and improvement system incentives and support under the Step Up to Quality Child Care Act.

(ii) Beginning October 1, 2017, the increase from seven percent to eight percent in the reservation of federal funds for activities relating to the quality of child care services described in subdivision (3)(a)(ii) of this section, plus the percentage allocated as described in subdivision (4)(a)(i) of this section, which together total four percent, shall be allocated for quality rating and improvement system incentives and support under the Step Up to Quality Child Care Act.

(iii) Beginning October 1, 2019, the increase from eight percent to nine percent in the reservation of federal funds for activities relating to the quality of child care services described in subdivision (3)(a)(iii) of this section, plus the percentage allocated as described in subdivision (4)(a)(ii) of this section, which together total five percent, shall be allocated for quality rating and improvement system incentives and support under the Step Up to Quality Child Care Act.

(iv) After the federal fiscal year beginning on October 1, 2019, five percent of federal funds provided to the State of Nebraska pursuant to the Child Care and Development Block Grant Act of 1990, 42 U.S.C. 9857 et seq., as such act and sections existed on January 1, 2015, which have been reserved for activities relating to the quality of child care services as described in subdivision (3)(a)(iii) of this section, shall be allocated for quality rating and improvement system incentives and support under the Step Up to Quality Child Care Act.

(b) Beginning October 1, 2016, the three-percent reservation of federal funds for activities relating to the quality of care for infants and toddlers described in subdivision (3)(b) of this section shall be allocated for providing grants to programs described in section 79-1104.02 that enter into agreements with child care providers.

(c) Funds distributed pursuant to this subsection shall comply with federal regulations contained in 45 C.F.R. 98.11, as such regulations existed on January 1, 2015.

(d) Nothing in this section shall prohibit the Department of Health and Human Services from allocating additional percentages of the child care and development block grant or other dollar amounts for activities relating to the quality of child care services or the quality of care for infants and toddlers.

Source:Laws 1991, LB 836, § 21; Laws 2015, LB547, § 1.

Cross References

Step Up to Quality Child Care Act, see section 71-1952.

43-2622. Child Care Grant Fund; established; use; investment.

The Child Care Grant Fund is hereby established to be administered by the Department of Health and Human Services. The fund shall be used to make grants pursuant to section 43-2624. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 1991, LB 836, § 23; Laws 1994, LB 1066, § 29; Laws 1996, LB 1044, § 230; Laws 1997, LB 307, § 100.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-2623. Appropriation to Child Care Grant Fund; legislative intent.

The Legislature recognizes that a shortage of quality, affordable, and accessible child care exists to the detriment of families and employers throughout the state. Workers are unable to enter or remain in the work force due to a shortage of child care resources. The high costs of starting or expanding a child care business creates a barrier to the creation of additional space, especially for infants and children with special needs. It is the intent of the Legislature to appropriate two hundred fifty thousand dollars annually to the Child Care Grant Fund from funds designated by the State of Nebraska under the Child Care and Development Block Grant Act of 1990.

Source:Laws 1991, LB 836, § 22.

43-2624. Child care grants.

The Department of Health and Human Services shall award grants to persons, community-based organizations, or schools needing assistance to start or improve a child care program or needing assistance to provide staff training for a child care program. No grant shall exceed ten thousand dollars. A recipient of a grant shall not be eligible for a grant more than once in a three-year period. Child care grants shall be awarded on the basis of need for the proposed services in the community. Grants shall be given only to grantees who do not discriminate against children with disabilities or children whose care is funded by any state or federal funds. When considering grant applications of equal merit, the department shall award the grant to the applicant which has not previously received a grant from the Child Care Grant Fund.

Source:Laws 1991, LB 836, § 24; Laws 1995, LB 401, § 20; Laws 1996, LB 1044, § 231; Laws 1997, LB 307, § 101; Laws 1998, LB 1073, § 32.

43-2625. Child care grants; rules and regulations.

The Department of Health and Human Services shall adopt and promulgate rules and regulations setting forth criteria, application procedures, and methods to assure compliance with the criteria for grants to be awarded pursuant to section 43-2624.

Source:Laws 1991, LB 836, § 25; Laws 1996, LB 1044, § 232; Laws 1997, LB 307, § 102.

43-2626. Child Care Capacity Building and Workforce Act, how cited.

Sections 43-2626 to 43-2639 shall be known and may be cited as the Child Care Capacity Building and Workforce Act.

Source:Laws 2024, LB164, § 30.
Operative Date: July 19, 2024

43-2627. Legislative findings.

The Legislature finds that:

(1) There is a lack of licensed child care programs in Nebraska;

(2) Providing incentives and support to the child care workforce will help maintain and increase the child care capacity in Nebraska;

(3) An increased child care capacity will bolster Nebraska's economy by providing parents and guardians the ability to enter, re-enter, and remain in the workforce; and

(4) The benefits of quality child care and early childhood education are indisputable and a connection exists between a child's learning experiences before entering kindergarten and success in school.

Source:Laws 2024, LB164, § 31.
Operative Date: July 19, 2024

43-2628. Terms, defined.

For purposes of the Child Care Capacity Building and Workforce Act:

(1) Capacity means the number of children receiving care or services through an approved program;

(2) Community foundation means a tax-exempt, nonprofit, autonomous, nonsectarian, philanthropic institution supported by the public with the long-term goals of:

(a) Building permanent, component funds established by many separate donors to carry out charitable interests; and

(b) Supporting the broad-based charitable interests and benefiting the residents of a defined geographic area;

(3) Department means the Department of Economic Development;

(4) Eligible recipient means:

(a) Any city of the metropolitan class, city of the primary class, city of the first class, city of the second class, village, or county;

(b) Any nonprofit organization, including any community foundation; or

(5) License-exempt provider means any approved license-exempt provider enrolled in the child care subsidy program pursuant to sections 68-1202 and 68-1206;

(6) Licensed child care program means a program described in section 71-1911; and

(7) Regional facilitator hub means any entity that provides administrative and technical support to any licensed child care program, including any:

(a) Nonprofit organization; or

(b) Community foundation.

Source:Laws 2024, LB164, § 32.
Operative Date: July 19, 2024

43-2629. Child Care Capacity Building and Workforce Grant Program; department; statewide organization; duties.

(1) The Child Care Capacity Building and Workforce Grant Program is created.

(2) The department shall contract with a statewide organization that supports children and families to administer the program, which may include providing technical assistance to any grant recipient. Up to five percent of the money appropriated to the department each fiscal year for purposes of the Child Care Capacity Building and Workforce Act may be reserved for such contract with a statewide organization.

(3) Under the guidance of the department, the statewide organization shall be responsible for the following under the program:

(a) Prescribing the form on which an eligible recipient may apply to receive a grant under the program;

(b) Reviewing applications and identifying potential grant recipients;

(d) Coordinating with the Department of Health and Human Services and the State Department of Education to determine if the grant request will help meet the child care needs of the eligible recipient.

(4) The Department of Economic Development shall:

(a) Award grants to eligible recipients across the state and in urban and rural areas to the fullest extent possible;

(b) Award a grant to an eligible recipient based upon a list of the potential grant recipients that are identified by the statewide organization; and

(i) Increase child care capacity for children three years of age or younger by creating a new licensed child care program or license-exempt child care program serving children enrolled in child care subsidy or expanding an existing licensed-child care or license-exempt child care program serving children enrolled in child care subsidy;

(ii) Support the child care workforce; or

(iii) Create a child care program in a county that is not served by any licensed or license-exempt child care program that offers full-day full-year care.

Source:Laws 2024, LB164, § 33.
Operative Date: July 19, 2024

43-2630. Grant; application.

To be eligible to receive a grant under the Child Care Capacity Building and Workforce Grant Program, an eligible recipient shall complete the application form prescribed by the statewide organization and provide for a one-to-one match for the amount of the grant. The eligible recipient shall include the following required information in its grant application:

(1) A needs assessment showing the child care capacity and the needs of the eligible recipient at the time of application;

(2) How the eligible recipient plans to use the grant;

(3) How the eligible recipient plans to provide a one-to-one match for the amount of any grant received. Such match shall be in the form of:

(a) Money or other collateral;

(b) An in-kind donation, including a donation of facilities, maintenance, or equipment; or

(4) Any other information required by the department.

Source:Laws 2024, LB164, § 34.
Operative Date: July 19, 2024

43-2631. Grant; use.

A grant recipient under the Child Care Capacity Building and Workforce Grant Program may use the grant to provide financial or other support to:

(1) The operation of a licensed child care program;

(2) The operation of a license-exempt provider serving children enrolled in child care subsidy;

(3) The child care workforce;

(4) Parents or guardians with children in child care programs;

(5) A federal Head Start program or Early Head Start program;

(6) Start or expand any existing licensed child care program or license-exempt program serving any child on a child care subsidy;

(7) An entity other than the statewide organization contracted to administer the Child Care Capacity Building and Workforce Program that provides administrative or technical support to a child care program;

(8) Build or remodel an existing building for child care purposes;

(9) Any purpose specified in rules and regulations adopted and promulgated by the department; or

(10) Any combination of such purposes.

Source:Laws 2024, LB164, § 35.
Operative Date: July 19, 2024

43-2632. Grant; match required; procedure.

(1) Each grant recipient under the Child Care Capacity Building and Workforce Grant Program shall provide the one-to-one match prior to receiving any disbursement of grant proceeds under the program.

(2) The department shall specify how a grant recipient may provide proof of a one-to-one match for a grant.

(3) The department shall disburse the grant proceeds to any grant recipient that provides satisfactory proof of a one-to-one match. The grant may be disbursed in increments as determined by the department.

Source:Laws 2024, LB164, § 36.
Operative Date: July 19, 2024

43-2633. Grant; repayment.

(1)(a) If the department determines that a grant recipient used the grant other than as provided in section 43-2631, the department may request the grant recipient to repay such grant and any remaining portion of the grant in the possession of the grant recipient to the department.

(b) If the department determines that a grant recipient falsified any information provided in the application process, the department may request the grant recipient to repay any or all of the grant disbursed to the grant recipient.

(2) A grant recipient that receives a request to repay a grant pursuant to subsection (1) of this section may appeal the decision, and the appeal shall be in accordance with the Administrative Procedure Act.

(3) Any money received under this section shall be remitted to the State Treasurer for credit to the Child Care Capacity Building and Workforce Cash Fund.

Source:Laws 2024, LB164, § 37.
Operative Date: July 19, 2024

Cross References

Administrative Procedure Act, see section 84-920.

43-2634. Department; report.

The department shall submit a report to the Legislature electronically on July 1, 2025, and each July 1 thereafter. Each report shall include the following:

(1) For each grant awarded under the Child Care Capacity Building and Workforce Grant Program since July 19, 2024, for the first such report and since the most recent report under this section for each subsequent report:

(a) The name of the grant recipient;

(b) The amount of the grant;

(d) The number, age, and county location of any children served through a valid use of a grant described under section 43-2631;

(2) The total amount of money awarded as grants and the total number of children served under subdivision (1) of this section;

(3) A compilation of ages and county locations of all children served through a valid use of a grant described under section 43-2631;

(4) Administrative costs of the department to administer the Child Care Capacity Building and Workforce Grant Program; and

(5) Any other information the department deems relevant to the Child Care Capacity Building and Workforce Grant Program.

Source:Laws 2024, LB164, § 38.
Operative Date: July 19, 2024

43-2635. Family Child Care Home Grant Program; department; duties; grant; application; use.

(1) The Family Child Care Home Grant Program is created and shall be administered by the department.

(2) The department shall provide grants for new and existing licensed family child care home programs in residential and nonresidential facilities and to create regional facilitator hubs in order to provide administrative and technical support to new and existing licensed family child care home programs in residential and nonresidential facilities.

(3) Any licensed child care provider, nonprofit organization, for-profit organization, community foundation, school, or regional facilitator hub or any other entity specified in rules and regulations adopted and promulgated by the department may apply for a grant under the Family Child Care Home Grant Program.

(4) A grant recipient under the Family Child Care Home Grant Program shall only use the grant to provide financial or other support to:

(a) An existing licensed family child care program in a residential or nonresidential building that is licensed to serve up to twelve children of mixed ages;

(b) Create a new licensed family child care home program in a residential or nonresidential building that is licensed to serve up to twelve children of mixed ages; or

Source:Laws 2024, LB164, § 39.
Operative Date: July 19, 2024

43-2636. Family Child Care Home Grant Program; department; report; contents.

The department shall submit a report to the Legislature electronically on July 1, 2025, and each July 1 thereafter. Each report shall include the following:

(1) For each grant awarded under the Family Child Care Home Grant Program since July 19, 2024, for the first such report and since the most recent report under this section for each subsequent report:

(a) The name of the grant recipient;

(b) The amount of the grant;

(d) The number, age, and county location of any children served through a valid use of a grant described under section 43-2635;

(2) The total amount of money awarded as grants and the total number of children served under subdivision (1) of this section;

(3) A compilation of ages and county locations of all children served through a valid use of a grant described under section 43-2635;

(4) Administrative costs of the department to administer the Family Child Care Home Grant Program; and

(5) Any other information the department deems relevant to the Family Child Care Home Grant Program.

Source:Laws 2024, LB164, § 40.
Operative Date: July 19, 2024

43-2637. Child Care Capacity Building and Workforce Cash Fund; created; use; investment.

(1) The Child Care Capacity Building and Workforce Cash Fund is created. The department shall administer the fund for purposes of the Child Care Capacity Building and Workforce Act. The fund may consist of transfers authorized by the Legislature and any gifts, grants, bequests, or donations to the fund.

(2) Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2024, LB164, § 41.
Operative Date: July 19, 2024

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-2638. Grants; limitations.

The total amount of grants awarded under the Child Care Capacity Building and Workforce Act shall be subject to the appropriation of funds from the Child Care Capacity Building and Workforce Cash Fund.

Source:Laws 2024, LB164, § 42.
Operative Date: July 19, 2024

43-2639. Rules and regulations.

The department may adopt and promulgate rules and regulations to administer the Child Care Capacity Building and Workforce Act.

Source:Laws 2024, LB164, § 43.
Operative Date: July 19, 2024

43-2701. Act, how cited.

Sections 43-2701 to 43-2724 shall be known and may be cited as the Nebraska Uniform Transfers to Minors Act.

Source:Laws 1992, LB 907, § 1.

43-2702. Definitions.

For purposes of the Nebraska Uniform Transfers to Minors Act:

(1) Adult means an individual who has attained the age of twenty-one years;

(2) Benefit plan means an employer's plan for the benefit of an employee, member, or partner;

(3) Broker means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others;

(4) Conservator means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions;

(5) Court means the county court;

(6) Custodial property means (a) any interest in property transferred to a custodian under the Nebraska Uniform Transfers to Minors Act and (b) the income from and proceeds of that interest in property;

(7) Custodian means a person so designated under section 43-2710 or a successor or substitute custodian designated under section 43-2719;

(8) Financial institution means a bank, trust company, savings institution, or credit union, chartered and supervised under state or federal law;

(9) Legal representative means an individual's personal representative or conservator;

(10) Member of the minor's family means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption;

(11) Minor means an individual who has not attained the age of twenty-one years;

(12) Person means an individual, corporation, limited liability company, organization, or other legal entity;

(13) Personal representative means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions;

(14) State means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States;

(15) Transfer means a transaction that creates custodial property under section 43-2710;

(16) Transferor means a person who makes a transfer under the Nebraska Uniform Transfers to Minors Act; and

(17) Trust company means a financial institution, corporation, limited liability company, or other legal entity, authorized to exercise general trust powers.

Source:Laws 1992, LB 907, § 2; Laws 1993, LB 121, § 218.

43-2703. Scope and jurisdiction.

(1) The Nebraska Uniform Transfers to Minors Act applies to a transfer that refers to the Nebraska Uniform Transfers to Minors Act in the designation under subsection (1) of section 43-2710 by which the transfer is made if at the time of the transfer the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to the Nebraska Uniform Transfers to Minors Act despite a subsequent change in residence of a transferor, the minor, or the custodian or the removal of custodial property from this state.

(2) A person designated as custodian under the Nebraska Uniform Transfers to Minors Act is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.

(3) A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state.

Source:Laws 1992, LB 907, § 3.

43-2704. Nomination of custodian.

(1) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: as custodian for ............. (name of minor) under the Nebraska Uniform Transfers to Minors Act. The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer, or other obligor of the contractual rights.

(2) A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under subsection (1) of section 43-2710.

(3) The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under section 43-2710. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to section 43-2710.

Source:Laws 1992, LB 907, § 4.

43-2705. Transfer by gift or exercise of power of appointment.

A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to section 43-2710.

Source:Laws 1992, LB 907, § 5.

43-2706. Transfer authorized by will or trust.

(1) A personal representative or trustee may make an irrevocable transfer pursuant to section 43-2710 to a custodian for the benefit of a minor as authorized in the governing will or trust.

(2) If the testator or settlor has nominated a custodian under section 43-2704 to receive the custodial property, the transfer must be made to that person.

(3) If the testator or settlor has not nominated a custodian under section 43-2704, or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection (1) of section 43-2710.

Source:Laws 1992, LB 907, § 6.

43-2707. Other transfer by fiduciary.

(1) Subject to subsection (3) of this section, a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to section 43-2710, in the absence of a will or under a will or trust that does not contain an authorization to do so.

(2) Subject to subsection (3) of this section, a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to section 43-2710.

(3) A transfer under subsection (1) or (2) of this section may be made only if (a) the personal representative, trustee, or conservator considers the transfer to be in the best interest of the minor, (b) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument, and (c) the transfer is authorized by the court if it exceeds forty thousand dollars in value.

Source:Laws 1992, LB 907, § 7; Laws 2024, LB1195, § 12.
Effective Date: July 19, 2024

43-2708. Transfer by obligor.

(1) Subject to subsections (2) and (3) of this section, a person not subject to section 43-2706 or 43-2707 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to section 43-2710.

(2) If a person having the right to do so under section 43-2704 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person.

(3) If no custodian has been nominated under section 43-2704 or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this section may be made to an adult member of the minor's family or to a trust company unless the property exceeds ten thousand dollars in value.

Source:Laws 1992, LB 907, § 8.

43-2709. Receipt for custodial property.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to the Nebraska Uniform Transfers to Minors Act.

Source:Laws 1992, LB 907, § 9.

43-2710. Manner of creating custodial property and effecting transfer; designation of initial custodian; control.

(1) Custodial property is created and a transfer is made whenever:

(a) An uncertificated security or a certificated security in registered form is either:

(i) Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: as custodian for ............. (name of minor) under the Nebraska Uniform Transfers to Minors Act; or

(ii) Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (2) of this section;

(b) Money is paid or delivered, or a security held in the name of a broker, financial institution, or its nominee is transferred, to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: as custodian for .................. (name of minor) under the Nebraska Uniform Transfers to Minors Act;

(i) Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: as custodian for ............. (name of minor) under the Nebraska Uniform Transfers to Minors Act; or

(ii) Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: as custodian for ............. (name of minor) under the Nebraska Uniform Transfers to Minors Act;

(d) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: as custodian for .......... (name of minor) under the Nebraska Uniform Transfers to Minors Act;

(e) An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: as custodian for ............... (name of minor) under the Nebraska Uniform Transfers to Minors Act;

(f) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:

(i) Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: as custodian for ............. (name of minor) under the Nebraska Uniform Transfers to Minors Act; or

(ii) Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: as custodian for ................ (name of minor) under the Nebraska Uniform Transfers to Minors Act; or

(g) An interest in any property not described in subdivisions (a) through (f) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (2) of this section.

(2) An instrument in the form set forth in this subsection satisfies the requirements of subdivisions (1)(a)(ii) and (1)(g) of this section.

TRANSFER UNDER THE NEBRASKA UNIFORM

TRANSFERS TO MINORS ACT

I, .................... (name of transferor or name and representative capacity if a fiduciary), hereby transfer to .............. (name of custodian), as custodian for ............... (name of minor) under the Nebraska Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it).

Dated: ..............................................

(Signature) .........................................

.................. (name of custodian) acknowledges receipt of the property described in this document as custodian for the minor named in this document under the Nebraska Uniform Transfers to Minors Act.

Dated: ..............................................

(Signature of Custodian) ............................

(3) A transferor shall place the custodian in control of the custodial property as soon as practicable.

Source:Laws 1992, LB 907, § 10.

43-2711. Single custodianship.

A transfer may be made only for one minor, and only one person may be the custodian. All custodial property held under the Nebraska Uniform Transfers to Minors Act by the same custodian for the benefit of the same minor constitutes a single custodianship.

Source:Laws 1992, LB 907, § 11.

43-2712. Validity and effect of transfer.

(1) The validity of a transfer made in a manner prescribed in the Nebraska Uniform Transfers to Minors Act is not affected by:

(a) Failure of the transferor to comply with subsection (3) of section 43-2710 concerning possession and control;

(b) Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under subsection (1) of section 43-2710; or

(c) Death or incapacity of a person nominated under section 43-2704 or designated under section 43-2710 as custodian or the disclaimer of the office by that person.

(2) A transfer made pursuant to section 43-2710 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in the Nebraska Uniform Transfers to Minors Act, and neither the minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in the act.

(3) By making a transfer, the transferor incorporates in the disposition all the provisions of the Nebraska Uniform Transfers to Minors Act and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in the act.

Source:Laws 1992, LB 907, § 12.

43-2713. Care of custodial property.

(1) A custodian shall:

(a) Take control of custodial property;

(b) Register or record title to custodial property if appropriate; and

(2) In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor.

(3) A custodian may invest in or pay premiums on life insurance or endowment policies on (a) the life of the minor only if the minor or the minor's estate is the sole beneficiary or (b) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian is the irrevocable beneficiary.

(4) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: as a custodian for ............ (name of minor) under the Nebraska Uniform Transfers to Minors Act.

(5) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen years.

Source:Laws 1992, LB 907, § 13.

43-2714. Powers of custodian.

(1) A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.

(2) This section does not relieve a custodian from liability for breach of section 43-2713.

Source:Laws 1992, LB 907, § 14.

43-2715. Use of custodial property.

(1) A custodian may deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor without court order and without regard to (a) the duty or ability of the custodian personally or of any other person to support the minor or (b) any other income or property of the minor which may be applicable or available for that purpose.

(2) On petition of an interested person or the minor if the minor has attained the age of fourteen years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.

(3) A delivery, payment, or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.

Source:Laws 1992, LB 907, § 15.

43-2716. Custodian's expenses, compensation, and bond.

(1) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.

(2) Except for one who is a transferor under section 43-2705, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.

(3) Except as provided in subsection (6) of section 43-2719, a custodian need not give a bond.

Source:Laws 1992, LB 907, § 16.

43-2717. Exemption of third person from liability.

A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:

(1) The validity of the purported custodian's designation;

(2) The propriety of or the authority under the Nebraska Uniform Transfers to Minors Act for any act of the purported custodian;

(3) The validity or propriety under the Nebraska Uniform Transfers to Minors Act of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or

(4) The propriety of the application of any property of the minor delivered to the purported custodian.

Source:Laws 1992, LB 907, § 17.

43-2718. Liability to third persons.

(1) A claim based on (a) a contract entered into by a custodian acting in a custodial capacity, (b) an obligation arising from the ownership or control of custodial property, or (c) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.

(2) A custodian is not personally liable:

(a) On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or

(b) For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.

(3) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.

Source:Laws 1992, LB 907, § 18.

43-2719. Renunciation, resignation, death, or removal of custodian; designation of successor custodian.

(1) A person nominated under section 43-2704 or designated under section 43-2710 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under section 43-2704, the person who made the nomination may nominate a substitute custodian under section 43-2704; otherwise the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under subsection (1) of section 43-2710. The custodian so designated has the rights of a successor custodian.

(2) A custodian at any time may designate a trust company or an adult other than a transferor under section 43-2705 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.

(3) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of fourteen years and to the successor custodian and by delivering the custodial property to the successor custodian.

(4) If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of fourteen years, the minor may designate as successor custodian, in the manner prescribed in subsection (2) of this section, an adult member of the minor's family, a conservator of the minor, or a trust company. If the minor has not attained the age of fourteen years or fails to act within sixty days after the ineligibility, death, or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.

(5) A custodian who declines to serve under subsection (1) of this section or who resigns under subsection (3) of this section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.

(6) A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of fourteen years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under section 43-2705 or to require the custodian to give appropriate bond.

Source:Laws 1992, LB 907, § 19.

43-2720. Accounting by and determination of liability of custodian.

(1) A minor who has attained the age of fourteen years, the minor's guardian of the person or legal representative, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court (a) for an accounting by the custodian or the custodian's legal representative or (b) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under section 43-2718 to which the minor or the minor's legal representative was a party.

(2) A successor custodian may petition the court for an accounting by the predecessor custodian.

(3) The court, in a proceeding under the Nebraska Uniform Transfers to Minors Act or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.

(4) If a custodian is removed under subsection (6) of section 43-2719, the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.

Source:Laws 1992, LB 907, § 20.

43-2721. Termination of custodianship.

The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earlier of:

(1) The minor's attainment of twenty-one years of age with respect to custodial property transferred under section 43-2705 or 43-2706;

(2) The minor's attainment of majority under section 43-2101 with respect to custodial property transferred under section 43-2707 or 43-2708; or

(3) The minor's death.

Source:Laws 1992, LB 907, § 21.

43-2722. Applicability.

The Nebraska Uniform Transfers to Minors Act applies to a transfer within the scope of section 43-2703 made after July 15, 1992, if:

(1) The transfer purports to have been made under the Nebraska Uniform Gifts to Minors Act or sections 43-2301 to 43-2305 as such act or sections existed on July 15, 1992; or

(2) The instrument by which the transfer purports to have been made uses in substance the designation as custodian under the Uniform Gifts to Minors Act of any other state or as custodian under the Uniform Transfers to Minors Act of any other state, and the application of the Nebraska Uniform Transfers to Minors Act is necessary to validate the transfer.

Source:Laws 1992, LB 907, § 22.

43-2723. Effect on existing custodianships.

(1) Any transfer of custodial property as defined in the Nebraska Uniform Transfers to Minors Act made before July 15, 1992, is validated notwithstanding that there was no specific authority in the Nebraska Uniform Gifts to Minors Act or sections 43-2301 to 43-2305 as such act or sections existed prior to such date for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.

(2) The Nebraska Uniform Transfers to Minors Act applies to all transfers made before July 15, 1992, in a manner and form prescribed in the Nebraska Uniform Gifts to Minors Act or sections 43-2301 to 43-2305 as such act or sections existed prior to such date except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on such date.

(3) Sections 43-2702 and 43-2721 with respect to the age of a minor for whom custodial property is held under the Nebraska Uniform Transfers to Minors Act do not apply to custodial property held in a custodianship that terminated because of the minor's attainment of the age of nineteen years before July 15, 1992.

(4) To the extent that the Nebraska Uniform Transfers to Minors Act, by virtue of subsection (2) of this section, does not apply to transfers made in a manner prescribed in the Nebraska Uniform Gifts to Minors Act or sections 43-2301 to 43-2305 as such act or sections existed prior to July 15, 1992, or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of the Nebraska Uniform Gifts to Minors Act and sections 43-2301 to 43-2305 as such act and sections existed prior to such date does not affect those transfers or those powers, duties, and immunities.

Source:Laws 1992, LB 907, § 23.

43-2724. Uniformity of application and construction.

The Nebraska Uniform Transfers to Minors Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of the Uniform Transfers to Minors Act among states enacting it.

Source:Laws 1992, LB 907, § 24.

43-2801. Repealed. Laws 2001, LB 6, § 1.

43-2802. Repealed. Laws 2001, LB 6, § 1.

43-2803. Repealed. Laws 2001, LB 6, § 1.

43-2804. Repealed. Laws 2001, LB 6, § 1.

43-2901. Repealed. Laws 2007, LB 554, § 49.

43-2902. Repealed. Laws 2007, LB 554, § 49.

43-2903. Repealed. Laws 2007, LB 554, § 49.

43-2904. Repealed. Laws 2007, LB 554, § 49.

43-2905. Repealed. Laws 2007, LB 554, § 49.

43-2906. Repealed. Laws 2007, LB 554, § 49.

43-2907. Repealed. Laws 2007, LB 554, § 49.

43-2908. Repealed. Laws 2007, LB 554, § 49.

43-2909. Repealed. Laws 2007, LB 554, § 49.

43-2910. Repealed. Laws 2007, LB 554, § 49.

43-2911. Repealed. Laws 2007, LB 554, § 49.

43-2912. Repealed. Laws 2007, LB 554, § 49.

43-2913. Repealed. Laws 2007, LB 554, § 49.

43-2914. Repealed. Laws 2007, LB 554, § 49.

43-2915. Repealed. Laws 2007, LB 554, § 49.

43-2916. Repealed. Laws 2007, LB 554, § 49.

43-2917. Repealed. Laws 2007, LB 554, § 49.

43-2917.01. Repealed. Laws 2007, LB 554, § 49.

43-2918. Repealed. Laws 2007, LB 554, § 49.

43-2919. Repealed. Laws 2007, LB 554, § 49.

43-2920. Act, how cited.

Sections 43-2920 to 43-2943 shall be known and may be cited as the Parenting Act.

Source:Laws 2007, LB554, § 1; Laws 2011, LB673, § 2.

43-2921. Legislative findings.

The Legislature finds that it is in the best interests of a child that a parenting plan be developed in any proceeding under Chapter 42 involving custody, parenting time, visitation, or other access with a child and that the parenting plan establish specific individual responsibility for performing such parenting functions as are necessary and appropriate for the care and healthy development of each child affected by the parenting plan.

The Legislature further finds that it is in the best interests of a child to have a safe, stable, and nurturing environment. The best interests of each child shall be paramount and consideration shall be given to the desires and wishes of the child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning.

In any proceeding involving a child, the best interests of the child shall be the standard by which the court adjudicates and establishes the individual responsibilities, including consideration in any custody, parenting time, visitation, or other access determinations as well as resolution of conflicts affecting each child. The state presumes the critical importance of the parent-child relationship in the welfare and development of the child and that the relationship between the child and each parent should be equally considered unless it is contrary to the best interests of the child.

Given the potential profound effects on children from witnessing child abuse or neglect or domestic intimate partner abuse, as well as being directly abused, the courts shall recognize the duty and responsibility to keep the child or children safe when presented with a preponderance of the evidence of child abuse or neglect or domestic intimate partner abuse, including evidence of a child being used by the abuser to establish or maintain power and control over the victim. In domestic intimate partner abuse cases, the best interests of each child are often served by keeping the child and the victimized partner safe and not allowing the abuser to continue the abuse. When child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict prevents the best interests of the child from being served in the parenting arrangement, then the safety and welfare of the child is paramount in the resolution of those conflicts.

Source:Laws 2007, LB554, § 2.

43-2922. Terms, defined.

For purposes of the Parenting Act:

(1) Appropriate means reflective of the developmental abilities of the child taking into account any cultural traditions that are within the boundaries of state and federal law;

(2) Approved mediation center means a mediation center approved by the Office of Dispute Resolution;

(3) Best interests of the child means the determination made taking into account the requirements stated in section 43-2923 or the Uniform Deployed Parents Custody and Visitation Act if such act applies;

(4) Child means a minor under nineteen years of age;

(5) Child abuse or neglect has the same meaning as in section 28-710;

(6) Court conciliation program means a court-based conciliation program under the Conciliation Court Law;

(7) Custody includes legal custody and physical custody;

(8) Domestic intimate partner abuse means an act of abuse as defined in section 42-903 and a pattern or history of abuse evidenced by one or more of the following acts: Physical or sexual assault, threats of physical assault or sexual assault, stalking, harassment, mental cruelty, emotional abuse, intimidation, isolation, economic abuse, or coercion against any current or past intimate partner, or an abuser using a child to establish or maintain power and control over any current or past intimate partner, and, when they contribute to the coercion or intimidation of an intimate partner, acts of child abuse or neglect or threats of such acts, cruel mistreatment or cruel neglect of an animal as defined in section 28-1008, or threats of such acts, and other acts of abuse, assault, or harassment, or threats of such acts against other family or household members. A finding by a child protection agency shall not be considered res judicata or collateral estoppel regarding an act of child abuse or neglect or a threat of such act, and shall not be considered by the court unless each parent is afforded the opportunity to challenge any such determination;

(9) Economic abuse means causing or attempting to cause an individual to be financially dependent by maintaining total control over the individual's financial resources, including, but not limited to, withholding access to money or credit cards, forbidding attendance at school or employment, stealing from or defrauding of money or assets, exploiting the victim's resources for personal gain of the abuser, or withholding physical resources such as food, clothing, necessary medications, or shelter;

(10) Emotional abuse means a pattern of acts, threats of acts, or coercive tactics, including, but not limited to, threatening or intimidating to gain compliance, destruction of the victim's personal property or threats to do so, violence to an animal or object in the presence of the victim as a way to instill fear, yelling, screaming, name-calling, shaming, mocking, or criticizing the victim, possessiveness, or isolation from friends and family. Emotional abuse can be verbal or nonverbal;

(11) Joint legal custody means mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child's welfare, including choices regarding education and health;

(12) Joint physical custody means mutual authority and responsibility of the parents regarding the child's place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time;

(13) Legal custody means the authority and responsibility for making fundamental decisions regarding the child's welfare, including choices regarding education and health;

(14) Mediation means a method of nonjudicial intervention in which a trained, neutral third-party mediator, who has no decisionmaking authority, provides a structured process in which individuals and families in conflict work through parenting and other related family issues with the goal of achieving a voluntary, mutually agreeable parenting plan or related resolution;

(15) Mediator means a mediator authorized to provide mediation under section 43-2938 and acting in accordance with the Parenting Act;

(16) Office of Dispute Resolution means the office established under section 25-2904;

(17) Parenting functions means those aspects of the relationship in which a parent or person in the parenting role makes fundamental decisions and performs fundamental functions necessary for the care and development of a child. Parenting functions include, but are not limited to:

(a) Maintaining a safe, stable, consistent, and nurturing relationship with the child;

(b) Attending to the ongoing developmental needs of the child, including feeding, clothing, physical care and grooming, health and medical needs, emotional stability, supervision, and appropriate conflict resolution skills and engaging in other activities appropriate to the healthy development of the child within the social and economic circumstances of the family;

(c) Attending to adequate education for the child, including remedial or other special education essential to the best interests of the child;

(d) Assisting the child in maintaining a safe, positive, and appropriate relationship with each parent and other family members, including establishing and maintaining the authority and responsibilities of each party with respect to the child and honoring the parenting plan duties and responsibilities;

(e) Minimizing the child's exposure to harmful parental conflict;

(f) Assisting the child in developing skills to maintain safe, positive, and appropriate interpersonal relationships; and

(g) Exercising appropriate support for social, academic, athletic, or other special interests and abilities of the child within the social and economic circumstances of the family;

(18) Parenting plan means a plan for parenting the child that takes into account parenting functions;

(19) Parenting time, visitation, or other access means communication or time spent between the child and parent or stepparent, the child and a court-appointed guardian, or the child and another family member or members including stepbrothers or stepsisters;

(20) Physical custody means authority and responsibility regarding the child's place of residence and the exertion of continuous parenting time for significant periods of time;

(21) Provisions for safety means a plan developed to reduce risks of harm to children and adults who are victims of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict;

(22) Remediation process means the method established in the parenting plan which maintains the best interests of the child and provides a means to identify, discuss, and attempt to resolve future circumstantial changes or conflicts regarding the parenting functions and which minimizes repeated litigation and utilizes judicial intervention as a last resort;

(23) Specialized alternative dispute resolution means a method of nonjudicial intervention in high conflict or domestic intimate partner abuse cases in which an approved specialized mediator facilitates voluntary mutual development of and agreement to a structured parenting plan, provisions for safety, a transition plan, or other related resolution between the parties;

(24) Transition plan means a plan developed to reduce exposure of the child and the adult to ongoing unresolved parental conflict during parenting time, visitation, or other access for the exercise of parental functions; and

(25) Unresolved parental conflict means persistent conflict in which parents are unable to resolve disputes about parenting functions which has a potentially harmful impact on a child.

Source:Laws 2007, LB554, § 3; Laws 2008, LB1014, § 55; Laws 2011, LB673, § 3; Laws 2015, LB219, § 31; Laws 2019, LB595, § 36.

Cross References

Conciliation Court Law, see section 42-802.

Uniform Deployed Parents Custody and Visitation Act, see section 43-4601.

Annotations

1. Domestic intimate partner abuse

2. Joint legal custody

3. Parental relationship

4. Parenting time

1. Domestic intimate partner abuse

"Domestic intimate partner abuse," pursuant to subdivision (8) of this section, requires both attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument to a family or household member and a pattern or history of abuse. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).

2. Joint legal custody

In the absence of an explicit contrary definition in a parenting plan, the term "joint legal custody" must be construed according to its statutory definition in the Parenting Act. Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022).

The definitions in the Parenting Act of "legal custody" and "joint legal custody" are terms of art having clear and unambiguous meaning. Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022).

Under the Parenting Act, joint legal custody involves mutual authority and responsibility of the parents while legal custody does not. Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022).

In a case where parents shared joint legal custody of the minor child, and neither parent had final decisionmaking authority, the mother's unilateral decision to change the minor child's school was a willful violation of the decree of dissolution of marriage. As such, this is a matter to be considered at an evidentiary hearing where the father could offer evidence to demonstrate both that a violation of the court order occurred and that the violation was willful. Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).

Joint legal custody is the joint authority and responsibility for making major decisions regarding the child's welfare, while sole legal custody essentially establishes that one party will have the final say in such decisions. Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).

Where the parenting plan indicates the parties were to share joint legal custody of the minor child, and where neither party was granted exclusive final decisionmaking authority, it is undisputed that the parties share mutual authority for making fundamental decisions regarding the minor child's welfare, including choices regarding education, such as where the minor child will attend school. Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).

Joint legal custody is separate and distinct from joint physical custody, and an appellate court will address each separately. Donald v. Donald, 296 Neb. 123, 892 N.W.2d 100 (2017).

An order governing custody was an award of "joint physical custody," rather than an award of "sole physical custody" to the mother, although the trial court referred to it as an award of "sole physical custody," where the custody order granted the father parenting time that amounted to seven overnights out of fourteen, and each parent was granted continuous blocks of parenting time for significant periods. State on behalf of Emery W. v. Michael W., 28 Neb. App. 956, 951 N.W.2d 177 (2020).

3. Parental relationship

Pursuant to subdivision (17) of this section, the parental relationship should be found to exist only if the facts and circumstances show that the individual means to take the place of the lawful parent, not only in providing support but also with reference to the natural parent's office of educating and instructing and caring for the general welfare of the child. The mother's former boyfriend did not stand in loco parentis to the child because he had a minimal role in fulfilling parenting functions during the parties' relationship and after their separation; his role primarily entailed playing with the child and looking after her for brief periods of time. Peister v. Eurek, 30 Neb. App. 366, 969 N.W.2d 134 (2021).

4. Parenting time

The mother's decision to move the child 4 hours away deprived the father of his court-ordered parenting time. Thus, the district court abused its discretion in failing to issue an order to show cause as to why the mother did not willfully violate the decree of dissolution in regard to the father's parenting time. Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).

43-2923. Best interests of the child requirements.

The best interests of the child require:

(1) A parenting arrangement and parenting plan or other court-ordered arrangement which provides for a child's safety, emotional growth, health, stability, and physical care and regular and continuous school attendance and progress for school-age children;

(2) When a preponderance of the evidence indicates domestic intimate partner abuse, a parenting and visitation arrangement that provides for the safety of a victim parent;

(3) That the child's families and those serving in parenting roles remain appropriately active and involved in parenting with safe, appropriate, continuing quality contact between children and their families when they have shown the ability to act in the best interests of the child and have shared in the responsibilities of raising the child;

(4) That even when parents have voluntarily negotiated or mutually mediated and agreed upon a parenting plan, the court shall determine whether it is in the best interests of the child for parents to maintain continued communications with each other and to make joint decisions in performing parenting functions as are necessary for the care and healthy development of the child. If the court rejects a parenting plan, the court shall provide written findings as to why the parenting plan is not in the best interests of the child;

(5) That certain principles provide a basis upon which education of parents is delivered and upon which negotiation and mediation of parenting plans are conducted. Such principles shall include: To minimize the potentially negative impact of parental conflict on children; to provide parents the tools they need to reach parenting decisions that are in the best interests of a child; to provide alternative dispute resolution or specialized alternative dispute resolution options that are less adversarial for the child and the family; to ensure that the child's voice is heard and considered in parenting decisions; to maximize the safety of family members through the justice process; and, in cases of domestic intimate partner abuse or child abuse or neglect, to incorporate the principles of victim safety and sensitivity, offender accountability, and community safety in parenting plan decisions; and

(6) In determining custody and parenting arrangements, the court shall consider the best interests of the minor child, which shall include, but not be limited to, consideration of the foregoing factors and:

(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;

(d) Credible evidence of abuse inflicted on any family or household member. For purposes of this subdivision, abuse and family or household member shall have the meanings prescribed in section 42-903; and

(e) Credible evidence of child abuse or neglect or domestic intimate partner abuse. For purposes of this subdivision, the definitions in section 43-2922 shall be used.

Source:Laws 2007, LB554, § 4; Laws 2008, LB1014, § 56; Laws 2010, LB901, § 2.

Annotations

1. Best interest factors

2. Child's preference

3. Miscellaneous

1. Best interest factors

In the context of visitation and preservation of parental rights, the list of factors in this section is relevant, but the court is not limited to only those factors. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).

Based on subdivision (6) of this section, when determining the best interests of the child in deciding custody, a court must consider, at a minimum, (1) the relationship of the minor child to each parent prior to the commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible evidence of abuse inflicted on any family or household member; and (5) credible evidence of child abuse or neglect or domestic intimate partner abuse. Chmelka v. Chmelka, 29 Neb. App. 265, 953 N.W.2d 288 (2020).

The best interests of a child require a parenting plan that provides for a child's safety, emotional growth, health, stability, physical care, and regular school attendance and which promotes a child's continued contact with his or her families and parents who have shown the ability to act in the child's best interests. Chmelka v. Chmelka, 29 Neb. App. 265, 953 N.W.2d 288 (2020).

The best interests of a child require that the child's family remain appropriately active and involved in parenting with safe, appropriate, and continuing quality contact between the child and the child's family when they have shown the ability to act in the best interests of the child and have shared in the responsibilities of raising the child. Thompson v. Thompson, 24 Neb. App. 349, 887 N.W.2d 52 (2016).

This section of the Nebraska Parenting Act sets forth a nonexhaustive list of factors to be considered in determining the best interests of a child in regard to custody. Such factors include the relationship of the minor child with each parent, the desires of the minor child, the general health and well-being of the minor child, and credible evidence of abuse inflicted on the child by any family or household member. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

2. Child's preference

A 15-year-old child's custody preference and the reasoning behind such preference is entitled to consideration but is not controlling in the determination of custody. Leners v. Leners, 302 Neb. 904, 925 N.W.2d 704 (2019).

Even though the district court did not conduct an in camera interview of the child, it did have in evidence the child's handwritten note with "testimony" written at the top of the first page. In the letter, the child stated what custody and parenting time arrangement she hoped for and explained her reasoning. Under the circumstances, that was sufficient to assess the child's "desires and wishes" for purposes of subdivision (6)(b) of this section. Toro v. Toro, 30 Neb. App. 158, 966 N.W.2d 519 (2021).

While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration. Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 419 (2016).

The trial court did not err in considering an 8 1/2-year-old child's wishes regarding custody, where there was no evidence that the court regarded the child's wishes as determinative of its decision and the child was of an age of comprehension and displayed sound reasoning. Kenner v. Battershaw, 24 Neb. App. 58, 879 N.W.2d 409 (2016).

3. Miscellaneous

A court is required to devise a parenting plan and to consider joint legal and physical custody, but the court is not required to grant equal parenting time to the parents if such is not in the child's best interests. Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009).

Limiting the father to supervised parenting time was supported by evidence of his verbal threats and physically abusive behaviors toward the mother, an altercation with his girlfriend and her ex-boyfriend, and the father's allowance of his girlfriend to be around the children, despite court orders prohibiting the girlfriend's presence around the children. Toro v. Toro, 30 Neb. App. 158, 966 N.W.2d 519 (2021).

The best interests considerations for determining custody and the best interests considerations for determining removal become intertwined when a change in custody necessarily includes the relocation of the child's primary residence to another state. Burton v. Schlegel, 29 Neb. App. 393, 954 N.W.2d 645 (2021).

The trial court was required to make written findings in a marital dissolution proceeding as to why the parties' stipulated parenting plan was not in the children's best interests, and beyond the court's statement that it did not approve of the parties' sharing joint decisionmaking authority over their children, the dissolution decree provided no written findings explaining why it rejected and modified the stipulated parenting plan. Cook v. Cook, 26 Neb. App. 137, 918 N.W.2d 1 (2018).

Although there was no evidence that the mother was currently engaged in abusive behaviors or an abusive relationship, the trial court acted within its discretion in finding that the father's custody was in the best interests of the child based on the mother's history of domestic violence, previous removal of a child, and the mother's questionable rehabilitation. State on behalf of Keegan M. v. Joshua M., 20 Neb. App. 411, 824 N.W.2d 383 (2012).

43-2924. Applicability of act.

(1) The Parenting Act shall apply to proceedings or modifications filed on or after January 1, 2008, in which parenting functions for a child are at issue (a) under Chapter 42, including, but not limited to, proceedings or modification of orders for dissolution of marriage and child custody and (b) under sections 43-1401 to 43-1418. The Parenting Act may apply to proceedings or modifications in which parenting functions for a child are at issue under Chapter 30 or 43. The Parenting Act shall also apply to subsequent modifications of bridge orders entered under section 43-246.02 by a separate juvenile court or county court sitting as a juvenile court and docketed in a district court.

(2) The Parenting Act does not apply in any action filed by a county attorney or authorized attorney pursuant to his or her duties under section 42-358, 43-512 to 43-512.18, or 43-1401 to 43-1418, the Income Withholding for Child Support Act, the Revised Uniform Reciprocal Enforcement of Support Act before January 1, 1994, or the Uniform Interstate Family Support Act for purposes of the establishment of paternity and the establishment and enforcement of child and medical support or a bridge order entered under section 43-246.02 by a separate juvenile court or county court sitting as a juvenile court and docketed in a district court. A county attorney or authorized attorney shall not participate in the development of or court review of a parenting plan under the Parenting Act. If both parents are parties to a paternity or support action filed by a county attorney or authorized attorney, the parents may proceed with a parenting plan.

Source:Laws 2007, LB554, § 5; Laws 2008, LB1014, § 57; Laws 2017, LB180, § 3.

Cross References

Income Withholding for Child Support Act, see section 43-1701.

Revised Uniform Reciprocal Enforcement of Support Act, applicability, see section 42-7,105.

Uniform Interstate Family Support Act, see section 42-701.

Annotations

In a paternity case subject to the Parenting Act where neither party has requested joint custody, if the court determines that joint custody is, or may be, in the best interests of the child, the court shall give the parties notice and an opportunity to be heard by holding an evidentiary hearing on the issue of joint custody. State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d 565 (2010).

The Parenting Act applied because the action was filed after January 1, 2008, and because parenting functions for a child were at issue. Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012).

43-2925. Proceeding in which parenting functions for child are at issue; information provided to parties; filing required.

(1) In any proceeding under Chapter 30 or 43 in which the parenting functions for a child are at issue, except any proceeding under the Revised Uniform Reciprocal Enforcement of Support Act or the Uniform Interstate Family Support Act, subsequent to the initial filing or upon filing of an application for modification of a decree, the parties shall receive from the clerk of the court information regarding the parenting plan, the mediation process, and resource materials, as well as the availability of mediation through court conciliation programs or approved mediation centers.

(2) In any proceeding under Chapter 42 and the Parenting Act in which the parenting functions for a child are at issue, subsequent to the filing of such proceeding all parties shall receive from the clerk of the court information regarding:

(a) The litigation process;

(b) A dissolution or separation process timeline;

(d) Information on child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict;

(e) Mediation, specialized alternative dispute resolution, and other alternative dispute resolution processes available through court conciliation programs and approved mediation centers;

(f) Resource materials identifying the availability of services for victims of child abuse or neglect and domestic intimate partner abuse; and

(g) Intervention programs for batterers or abusers.

(3) The clerk of the court and counsel for represented parties shall file documentation of compliance with this section. Development of these informational materials and the implementation of this section shall be accomplished through the State Court Administrator.

Source:Laws 2007, LB554, § 6.

Cross References

Revised Uniform Reciprocal Enforcement of Support Act, applicability, see section 42-7,105.

Uniform Interstate Family Support Act, see section 42-701.

43-2926. State Court Administrator; create information sheet; contents; parenting plan mediation; distribution of information sheet.

The State Court Administrator shall create an information sheet for parties in a proceeding in which parenting functions for a child are at issue under the Parenting Act that includes information regarding parenting plans, child custody, parenting time, visitation, and other access and that informs the parties that they are required to attend a basic level parenting education course. The information sheet shall also state (1) that the parties have the right to agree to a parenting plan arrangement, (2) that before July 1, 2010, if they do not agree, they may be required, and on and after July 1, 2010, if they do not agree, they shall be required to participate in parenting plan mediation, and (3) that if mediation does not result in an agreement, the court will be required to create a parenting plan. The information sheet shall also provide information on how to obtain assistance in resolving a custody case, including, but not limited to, information on finding an attorney, information on accessing court-based self-help services if they are available, information about domestic violence service agencies, information about mediation, and information regarding other sources of assistance in developing a parenting plan. The State Court Administrator shall adopt this information sheet as a statewide form and take reasonable steps to ensure that it is distributed statewide and made available to parties in parenting function matters.

Source:Laws 2007, LB554, § 7.

43-2927. Training; screening guidelines and safety procedures; State Court Administrator's office; duties.

(1) Mediators involved in proceedings under the Parenting Act shall participate in training approved by the State Court Administrator to recognize child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict and its potential impact upon children and families.

(2) Screening guidelines and safety procedures for cases involving conditions identified in subsection (1) of section 43-2939 shall be devised by the State Court Administrator. Such screening shall be conducted by mediators using State Court Administrator-approved screening tools.

(3) Such screening shall be conducted as a part of the individual initial screening session for each case referred to mediation under the Parenting Act prior to setting the case for mediation to determine whether or not it is appropriate to proceed in mediation or to proceed in a form of specialized alternative dispute resolution.

(4) The State Court Administrator's office, in collaboration with professionals in the fields of domestic abuse services, child and family services, mediation, and law, shall develop and approve curricula for the training required under subsection (1) of this section, as well as develop and approve rules, procedures, and forms for training and screening for child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict.

Source:Laws 2007, LB554, § 8; Laws 2008, LB1014, § 58.

43-2928. Attendance at basic level parenting education course; delay or waiver; second-level parenting education course; State Court Administrator; duties; costs.

(1) The court shall order all parties to a proceeding under the Parenting Act to attend a basic level parenting education course. Participation in the course may be delayed or waived by the court for good cause shown. Failure or refusal by any party to participate in such a course as ordered by the court shall not delay the entry of a final judgment or an order modifying a final judgment in such action by more than six months and shall in no case be punished by incarceration.

(2) The court may order parties under the act to attend a second-level parenting education course subsequent to completion of the basic level course when screening or a factual determination of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict has been identified.

(3) The State Court Administrator shall approve all parenting education courses under the act.

(4) The basic level parenting education course pursuant to this section shall be designed to educate the parties about the impact of the pending court action upon the child and appropriate application of parenting functions. The course shall include, but not be limited to, information on the developmental stages of children, adjustment of a child to parental separation, the litigation and court process, alternative dispute resolution, conflict management, stress reduction, guidelines for parenting time, visitation, or other access, provisions for safety and transition plans, and information about parents and children affected by child abuse or neglect, domestic intimate partner abuse, and unresolved parental conflict.

(5) The second-level parenting education course pursuant to this section shall include, but not be limited to, information about development of provisions for safety and transition plans, the potentially harmful impact of domestic intimate partner abuse and unresolved parental conflict on the child, use of effective communication techniques and protocols, resource and referral information for victim and perpetrator services, batterer intervention programs, and referrals for mental health services, substance abuse services, and other community resources.

(6) Each party shall be responsible for the costs, if any, of attending any court-ordered parenting education course. At the request of any party, or based upon screening or recommendation of a mediator, the parties shall be allowed to attend separate courses or to attend the same course at different times, particularly if child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict is or has been present in the relationship or one party has threatened the other party.

Source:Laws 2007, LB554, § 9; Laws 2008, LB1014, § 59.

43-2929. Parenting plan; developed; approved by court; contents.

(1) In any proceeding in which parenting functions for a child are at issue under Chapter 42, a parenting plan shall be developed and shall be approved by the court. Court rule may provide for the parenting plan to be developed by the parties or their counsel, a court conciliation program, an approved mediation center, or a private mediator. When a parenting plan has not been developed and submitted to the court, the court shall create the parenting plan in accordance with the Parenting Act. A parenting plan shall serve the best interests of the child pursuant to sections 42-364 and 43-2923 or the Uniform Deployed Parents Custody and Visitation Act if such act applies and shall:

(a) Assist in developing a restructured family that serves the best interests of the child by accomplishing the parenting functions; and

(b) Include, but not be limited to, determinations of the following:

(i) Legal custody and physical custody of each child;

(ii) Apportionment of parenting time, visitation, or other access for each child, including, but not limited to, specified religious and secular holidays, birthdays, Mother's Day, Father's Day, school and family vacations, and other special occasions, specifying dates and times for the same, or a formula or method for determining such a schedule in sufficient detail that, if necessary, the schedule can be enforced in subsequent proceedings by the court, and set out appropriate times and numbers for telephone access;

(iii) Location of the child during the week, weekend, and given days during the year;

(iv) A transition plan, including the time and places for transfer of the child, method of communication or amount and type of contact between the parties during transfers, and duties related to transportation of the child during transfers;

(v) Procedures for making decisions regarding the day-to-day care and control of the child consistent with the major decisions made by the person or persons who have legal custody and responsibility for parenting functions;

(vi) Provisions for a remediation process regarding future modifications to such plan;

(vii) Arrangements to maximize the safety of all parties and the child;

(viii) Provisions to ensure regular and continuous school attendance and progress for school-age children of the parties; and

(ix) Provisions for safety when a preponderance of the evidence establishes child abuse or neglect, domestic intimate partner abuse, unresolved parental conflict, or criminal activity which is directly harmful to a child.

(2) A parenting plan shall require that the parties notify each other of a change of address, except that the address or return address shall only include the county and state for a party who is living or moving to an undisclosed location because of safety concerns.

(3) When safe and appropriate for the best interests of the child, the parenting plan may encourage mutual discussion of major decisions regarding parenting functions including the child's education, health care, and spiritual or religious upbringing. However, when a prior factual determination of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict has been made, then consideration shall be given to inclusion of provisions for safety and a transition plan that restrict communication or the amount and type of contact between the parties during transfers.

(4) Regardless of the custody determinations in the parenting plan, unless parental rights are terminated, both parents shall continue to have the rights stated in section 42-381.

(5) In the development of a parenting plan, consideration shall be given to the child's age, the child's developmental needs, and the child's perspective, as well as consideration of enhancing healthy relationships between the child and each party.

Source:Laws 2007, LB554, § 10; Laws 2008, LB1014, § 60; Laws 2011, LB673, § 5; Laws 2015, LB219, § 32.

Cross References

Uniform Deployed Parents Custody and Visitation Act, see section 43-4601.

Annotations

A determination of legal custody is a mandatory and indispensable part of a parenting plan. Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 (2022).

Pursuant to subdivision (1)(b)(ix) of this section, the district court did not abuse its discretion in ordering the mother to attend an anger management course and counseling to address her coparenting issues. Schriner v. Schriner, 25 Neb. App. 165, 903 N.W.2d 691 (2017).

Although the trial court's order did not attach a parenting plan and did not address several determinations under subdivision (1)(b) of this section, such error did not deprive the appellate court of jurisdiction where the order addressed custody, telephone visitation, and alternating weekend and holiday visitation. Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012).

This section requires that a parenting plan be developed and approved by the court in any dissolution proceeding where the custody of a minor child is at issue. Where a decree fails to do so, the decree is not a final, appealable order. Bhuller v. Bhuller, 17 Neb. App. 607, 767 N.W.2d 813 (2009).

43-2929.01. Repealed. Laws 2015, LB219, § 35.

43-2930. Child information affidavit; when required; contents; hearing; temporary parenting order; contents; form; temporary support.

(1) Each party to a contested proceeding for a temporary order relating to parenting functions or custody, parenting time, visitation, or other access shall offer a child information affidavit as an exhibit at the hearing before the court. The child information affidavit shall be verified to the extent known or reasonably discoverable by the filing party or parties and may include the following:

(a) The name, address, and length of residence with any adults with whom each child has lived for the preceding twelve months; except that the address shall only include the county and state for a parent who is living in an undisclosed location because of safety concerns;

(b) The performance by each parent or person acting as parent for the preceding twelve months of the parenting functions relating to the daily needs of the child;

(c) A description of the work and child care schedules for the preceding twelve months of any person seeking custody, parenting time, visitation, or other access and any expected changes to these schedules in the near future;

(d) A description of the current proposed work and child care schedules; and

(e) A description of the child's school and extracurricular activities, including who is responsible for transportation of the child.

The child information affidavit may also state any circumstances of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict that are likely to pose a risk to the child and that warrant limitation on the award of temporary custody, parenting time, visitation, or other access to the child pending entry of a permanent parenting plan, including any restraining orders, protection orders, or criminal no-contact orders against either parent or a person acting as a parent by case number and jurisdiction.

(2) After a contested hearing by live testimony or affidavit, the court shall enter a temporary parenting order that includes:

(a) Provision for temporary legal custody;

(b) Provisions for temporary physical custody, which shall include either:

(i) A parenting time, visitation, or other access schedule that designates in which home each child will reside on given days of the year; or

(ii) A formula or method for determining such a schedule in sufficient detail that, if necessary, the schedule can be enforced in subsequent proceedings by the court;

(d) Reference to any existing restraining orders, protection orders, or criminal no-contact orders as well as provisions for safety and a transition plan, consistent with any court's finding of child abuse or neglect, domestic intimate partner abuse, or unresolved parental conflict in order to provide for the safety of a child and a parent who has physical custody of the child necessary for the best interests of the child; and

(e) If appropriate, a requirement that a parent complete a program of intervention for perpetrators of domestic violence, a program for drug or alcohol abuse, or a program designed to correct another factor as a condition of parenting time.

(3) A party may move for an order to show cause, and the court may enter a modified temporary parenting order.

(4) The State Court Administrator's office shall create a form that may be used by the parties to create a child information affidavit setting forth the elements identified in this section.

(5) Provisions for temporary support for the child and other financial matters may be included in the temporary parenting order.

Source:Laws 2007, LB554, § 11; Laws 2008, LB1014, § 61; Laws 2013, LB561, § 51.

Annotations

Pursuant to subdivision (2)(e) of this section, the district court did not abuse its discretion in ordering the mother to attend an anger management course and counseling to address her coparenting issues. Schriner v. Schriner, 25 Neb. App. 165, 903 N.W.2d 691 (2017).

43-2931. Repealed. Laws 2008, LB 1014, § 81.

43-2932. Parenting plan; limitations to protect child or child's parent from harm; effect of court determination; burden of proof.

(1) When the court is required to develop a parenting plan:

(a) If a preponderance of the evidence demonstrates, the court shall determine whether a parent who would otherwise be allocated custody, parenting time, visitation, or other access to the child under a parenting plan:

(i) Has committed child abuse or neglect;

(ii) Has committed child abandonment under section 28-705;

(iii) Has committed domestic intimate partner abuse; or

(iv) Has interfered persistently with the other parent's access to the child, except in the case of actions taken for the purpose of protecting the safety of the child or the interfering parent or another family member, pending adjudication of the facts underlying that belief; and

(b) If a parent is found to have engaged in any activity specified by subdivision (1)(a) of this section, limits shall be imposed that are reasonably calculated to protect the child or child's parent from harm. The limitations may include, but are not limited to:

(i) An adjustment of the custody of the child, including the allocation of sole legal custody or physical custody to one parent;

(ii) Supervision of the parenting time, visitation, or other access between a parent and the child;

(iii) Exchange of the child between parents through an intermediary or in a protected setting;

(iv) Restraints on the parent from communication with or proximity to the other parent or the child;

(v) A requirement that the parent abstain from possession or consumption of alcohol or nonprescribed drugs while exercising custodial responsibility and in a prescribed period immediately preceding such exercise;

(vi) Denial of overnight physical custodial parenting time;

(vii) Restrictions on the presence of specific persons while the parent is with the child;

(viii) A requirement that the parent post a bond to secure return of the child following a period in which the parent is exercising physical custodial parenting time or to secure other performance required by the court; or

(ix) Any other constraints or conditions deemed necessary to provide for the safety of the child, a child's parent, or any person whose safety immediately affects the child's welfare.

(2) A court determination under this section shall not be considered a report for purposes of inclusion in the central registry of child protection cases pursuant to the Child Protection and Family Safety Act.

(3) If a parent is found to have engaged in any activity specified in subsection (1) of this section, the court shall not order legal or physical custody to be given to that parent without making special written findings that the child and other parent can be adequately protected from harm by such limits as it may impose under such subsection. The parent found to have engaged in the behavior specified in subsection (1) of this section has the burden of proving that legal or physical custody, parenting time, visitation, or other access to that parent will not endanger the child or the other parent.

Source:Laws 2007, LB554, § 13; Laws 2008, LB1014, § 62; Laws 2014, LB853, § 26.

Cross References

Child Protection and Family Safety Act, see section 28-710.

Annotations

To meet the requirement for "special written findings" under subsection (3) of this section, the court must, at a minimum, specifically state that it finds that the children and the other parent may be adequately protected from harm by the limits the court has actually imposed in the parenting plan. The court's findings should also indicate that the court recognized that the burden on this issue was on the parent found to have committed the abuse. The court should further identify what limits it imposed in the parenting plan that it finds will provide the necessary protection. Franklin M. v. Lauren C., 310 Neb. 927, 969 N.W.2d 882 (2022).

In awarding custody of a child, special written findings that a child and other parent can be adequately protected from harm are required if a parent is found to have engaged in "domestic intimate partner abuse," which means attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument to a family or household member and a pattern or history of abuse. Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019).

Regardless of when the parent was convicted of third degree domestic assault, where the district court was presented with evidence of that conviction during modification proceedings, it was required to comply with this section in making a custody determination. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

Threatening to cause or actually causing bodily injury to a spouse or former spouse qualifies as domestic intimate partner abuse. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

Where a preponderance, or the greater weight, of the evidence demonstrates that a parent has committed one of the listed actions, the obligations of this section are mandatory. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).

The district court did not abuse its discretion by ordering therapeutic and supervised parenting time for the father. The ability to transition to unsupervised parenting time was in the father's control. He simply needed to demonstrate that he would no longer engage in manipulative or alienating behavior which adversely impacted the children's relationship with their mother. Wright v. Wright, 29 Neb. App. 787, 961 N.W.2d 834 (2021).

When a parent has committed domestic intimate partner abuse, subsection (3) of this section requires the district court to make special written findings that the child and other parent can be adequately protected from harm before ordering legal or physical custody to be given to that parent. Fales v. Fales, 25 Neb. App. 868, 914 N.W.2d 478 (2018).

The requirement to make special written findings that the child and the "other parent" can be adequately protected from harm if child custody is awarded to the parent with a record of domestic abuse applies to instances where domestic abuse occurred between the parents of the child or children at issue, where it is necessary to ensure that there is no future domestic abuse to the "other parent." This section does not apply to a case in which one parent's conviction for domestic abuse was the result of an incident with a prior or estranged domestic intimate partner, who is not a party in the current action. State on behalf of Dawn M. v. Jerrod M., 22 Neb. App. 835, 861 N.W.2d 755 (2015).

43-2933. Registered sex offender; other criminal convictions; limitation on or denial of custody or access to child; presumption; modification of previous order.

(1)(a) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if the person is required to be registered as a sex offender under the Sex Offender Registration Act for an offense that would make it contrary to the best interests of the child for such access or for an offense in which the victim was a minor or if the person has been convicted under section 28-311, 28-319.01, 28-320, 28-320.01, or 28-320.02, unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.

(b) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if anyone residing in the person's household is required to register as a sex offender under the Sex Offender Registration Act as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.

(c) The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under the Sex Offender Registration Act shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. However, this presumption shall not apply if there are factors mitigating against its application, including whether the other party seeking custody, parenting time, visitation, or other access is also required, as the result of a felony conviction in which the victim was a minor, to register as a sex offender under the Sex Offender Registration Act.

(2) Except as otherwise provided in the Nebraska Indian Child Welfare Act, no person shall be granted custody, parenting time, visitation, or other access with a child if the person has been convicted under section 28-319 or 28-320 or a law in another jurisdiction similar to either section 28-319 or 28-320 and the child was conceived as a result of that violation unless the custodial parent or guardian, as defined in section 43-245, consents.

(3) A change in circumstances relating to subsection (1) or (2) of this section is sufficient grounds for modification of a previous order.

Source:Laws 2007, LB554, § 14; Laws 2017, LB289, § 23.

Cross References

Nebraska Indian Child Welfare Act, see section 43-1501.

Sex Offender Registration Act, see section 29-4001.

Annotations

To overcome the "bursting bubble" presumption set forth in subdivision (1)(c) of this section, a custodial parent must produce evidence that, even with a sex offender's access, the child or children are not at significant risk. If the evidence is produced, the presumption disappears and the trial court must weigh the evidence presented free from any legal presumptions. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016).

Taken together, subdivision (1)(b) and subsection (3) of this section create a statutory presumption against custody being awarded to a person residing with a person required to register under the Sex Offender Registration Act due to a felony conviction in which the victim was a minor or as a result of an offense that would make it contrary to the best interests of the child whose custody is at issue, but this presumption can be overcome by evidence. Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).

Pursuant to subsection (2) of this section, no person shall be granted custody, parenting time, visitation, or other access with a child if the person has been convicted under section 28-319 (first degree sexual assault) and the child was conceived as a result of that violation. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).

Subsection (2) of this section applies to cases under the Nebraska Juvenile Code when parenting functions are at issue under chapter 42 of the Nebraska Revised Statutes. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).

Subsection (2) of this section does not provide for any exception to or discretion in its mandatory language. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).

Subsection (2) of this section falls under the Parenting Act, section 43-2920 et seq., and not under the Nebraska Juvenile Code, section 43-245 et seq. In re Interest of Danajah G. et al., 23 Neb. App. 244, 870 N.W.2d 432 (2015).

A person seeking a change in custody based upon "material" changes in circumstances cannot piggyback such alleged material changes on the statutorily deemed change in circumstances provided by this section. Hopkins v. Hopkins, 23 Neb. App. 174, 869 N.W.2d 390 (2015).

If an attempt to change custody is not successful pursuant to this section, then as to any other grounds for modification alleged, the party seeking the modification in custody bears the burden of showing a material change of circumstances affecting the best interests of the child. Hopkins v. Hopkins, 23 Neb. App. 174, 869 N.W.2d 390 (2015).

43-2934. Restraining order, protection order, or criminal no-contact order; effect; court findings; court powers and duties.

(1) Whenever custody, parenting time, visitation, or other access is granted to a parent in a case in which domestic intimate partner abuse is alleged and a restraining order, protection order, or criminal no-contact order has been issued, the custody, parenting time, visitation, or other access order shall specify the time, day, place, and manner of transfer of the child for custody, parenting time, visitation, or other access to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. If the court finds that a party is staying in a place designated as a shelter for victims of domestic abuse or other confidential location, the time, day, place, and manner of transfer of the child for custody, parenting time, visitation, or other access shall be designed to prevent disclosure of the location of the shelter or other confidential location.

(2) When making an order or parenting plan for custody, parenting time, visitation, or other access in a case in which domestic abuse is alleged and a restraining order, protection order, or criminal no-contact order has been issued, the court shall consider whether the best interests of the child, based upon the circumstances of the case, require that any custody, parenting time, visitation, or other access arrangement be limited to situations in which a third person, specified by the court, is present, or whether custody, parenting time, visitation, or other access should be suspended or denied.

(3) When required by the best interests of the child, the court may enter a custody, parenting time, visitation, or other access order that is inconsistent with an existing restraining order, protection order, or criminal no-contact order. However, it may do so only if it has jurisdiction and authority to do so.

(4) If the court lacks jurisdiction or is otherwise unable to modify the restraining order, protection order, or criminal no-contact order, the court shall require that a certified copy of the custody, parenting time, visitation, or other access order be placed in the court file containing the restraining order, protection order, or criminal no-contact order.

Source:Laws 2007, LB554, § 15; Laws 2008, LB1014, § 63.

43-2935. Hearing; parenting plan; modification; court powers.

(1) After a hearing on the record, the court shall determine whether the submitted parenting plan meets all of the requirements of the Parenting Act and is in the best interests of the child. If the parenting plan lacks any of the elements required by the act or is not in the child's best interests, the court shall modify and approve the parenting plan as modified, reject the parenting plan and order the parties to develop a new parenting plan, or reject the parenting plan and create a parenting plan that meets all the required elements and is in the best interests of the child. The court may include in the parenting plan:

(a) A provision for resolution of disputes that arise under the parenting plan, including provisions for suspension of parenting time, visitation, and other access when new findings of child abuse or neglect, domestic intimate partner abuse, criminal activity affecting the best interests of a child, or the violation of a protection order, restraining order, or criminal no-contact order occur, until a modified custody order or parenting plan with provisions for safety or a transition plan, or both, is in place; and

(b) Consequences for failure to follow parenting plan provisions.

(2) A hearing is not required under this section:

(a) In a divorce action, if both parties have waived in writing the requirement for a hearing under section 42-361;

(b) In an action for a legal separation, if both parties have waived in writing the requirement for a hearing under section 42-361.01; or

(c) In any other action creating or modifying a parenting plan including an action to establish paternity, if (i) all parties have waived in writing the requirement of the hearing, (ii) the court has sufficient basis to make a finding that it has subject matter jurisdiction over the action and personal jurisdiction over all parties, (iii) all documents required by the court and by law have been filed, and (iv) the parties have entered into a written agreement, signed by the parties under oath, resolving all issues presented by the pleadings.

Source:Laws 2007, LB554, § 16; Laws 2012, LB899, § 3; Laws 2013, LB107, § 1.

43-2936. Request for mediation, specialized alternative dispute resolution, or other alternative dispute resolution process; information provided to parties.

An individual party, a guardian ad litem, or a social service agency may request that a custody, parenting time, visitation, other access, or related matter proceed to mediation, specialized alternative dispute resolution, or other alternative dispute resolution process at any time prior to the filing or after the filing of an action with a court. Upon receipt of such request, each mediator, court conciliation program, or approved mediation center shall provide information about mediation and specialized alternative dispute resolution to each party.

Source:Laws 2007, LB554, § 17; Laws 2008, LB1014, § 64.

43-2937. Court referral to mediation or specialized alternative dispute resolution; temporary relief; specialized alternative dispute resolution rule; approval; mandatory court order; when; waiver.

(1) In addition to those cases that are mandatorily referred to mediation or specialized alternative dispute resolution under subsection (3) of this section, a court may, at any time in the proceedings upon its own motion or upon the motion of either party, refer a case to mediation or specialized alternative dispute resolution in order to attempt resolution of any relevant matter. The court may state a date for the case to return to court, and the court shall not grant an extension of such date except for cause. If the court refers a case to mediation or specialized alternative dispute resolution, the court may, if appropriate, order temporary relief, including necessary support and provision for payment of mediation costs. Court referral shall be to a mediator agreed to by the parties and approved by the court, an approved mediation center, or a court conciliation program. The State Court Administrator's office shall develop a process to approve mediators who are qualified under subsection (2) or (3) of section 43-2938.

(2) Prior to July 1, 2010, if there are allegations of domestic intimate partner abuse or unresolved parental conflict between the parties in any proceeding, mediation shall not be required pursuant to the Parenting Act or by local court rule, unless the court has established a specialized alternative dispute resolution rule approved by the State Court Administrator. The specialized alternative dispute resolution process shall include a method for court consideration of precluding or disqualifying parties from participating; provide an opportunity to educate both parties about the process; require informed consent from both parties in order to proceed; provide safety protocols, including separate individual sessions for each participant, informing each party about the process, and obtaining informed consent from each party to continue the process; allow support persons to attend sessions; and establish opt-out-for-cause provisions. On and after July 1, 2010, all trial courts shall have a mediation and specialized alternative dispute resolution rule in accordance with the act.

(3) Except as provided in subsection (4) of this section, for cases filed on or after July 1, 2010, all parties who have not submitted a parenting plan to the court within the time specified by the court shall be ordered to participate in mediation or specialized alternative dispute resolution with a mediator, a court conciliation program, or an approved mediation center as provided in section 43-2938.

(4) For good cause shown and (a) when both parents agree and such parental agreement is bona fide and not asserted to avoid the purposes of the Parenting Act, or (b) when mediation or specialized alternative dispute resolution is not possible without undue delay or hardship to either parent, the mediation or specialized alternative dispute resolution requirement may be waived by the court. In such a case where waiver of the mediation or specialized alternative dispute resolution is sought, the court shall hold an evidentiary hearing and the burden of proof for the party or parties seeking waiver is by clear and convincing evidence.

Source:Laws 2007, LB554, § 18; Laws 2008, LB1014, § 65; Laws 2010, LB901, § 3; Laws 2019, LB595, § 37.

43-2938. Mediator; qualifications; training; approved specialized mediator; requirements.

(1) A mediator under the Parenting Act may be a court conciliation program counselor, a court conciliation program mediator, an approved mediation center affiliated mediator, a mediator approved by the Office of Dispute Resolution, or an attorney as provided in subsection (4) of this section.

(2) To qualify for inclusion in the roster of mediators maintained by the Office of Dispute Resolution as an approved Parenting Act mediator, a person shall have basic mediation training and family mediation training, approved by the Office of Dispute Resolution, and shall have served as an apprentice to a mediator as defined in section 25-2903. The training shall include, but not be limited to:

(a) Knowledge of the court system and procedures used in contested family matters;

(b) General knowledge of family law, especially regarding custody, parenting time, visitation, and other access, and support, including calculation of child support using the child support guidelines pursuant to section 42-364.16;

(d) General knowledge of child development, the potential effects of dissolution or parental separation upon children, parents, and extended families, and the psychology of families;

(e) Knowledge of child abuse or neglect and domestic intimate partner abuse and their potential impact upon the safety of family members, including knowledge of provisions for safety, transition plans, domestic intimate partner abuse screening protocols, and mediation safety measures; and

(f) Knowledge in regard to the potential effects of domestic violence on a child; the nature and extent of domestic intimate partner abuse; the social and family dynamics of domestic intimate partner abuse; techniques for identifying and assisting families affected by domestic intimate partner abuse; interviewing, documentation of, and appropriate recommendations for families affected by domestic intimate partner abuse; and availability of community and legal domestic violence resources.

(3) To qualify for inclusion in the roster of mediators maintained by the Office of Dispute Resolution as an approved specialized mediator for parents involved in high conflict and situations in which abuse is present, the mediator shall apply to an approved mediation center or court conciliation program for consideration to be listed as an approved specialized mediator. The approved mediation center or court conciliation program shall submit its list of approved specialized mediators for inclusion in the roster to the Office of Dispute Resolution on an annual basis. Minimum requirements to be listed as an approved specialized mediator include:

(a) Affiliation with a court conciliation program or an approved mediation center;

(b) Meeting the minimum standards for a Parenting Act mediator under this section;

(d) Satisfactorily completing an additional minimum twenty-four-hour specialized alternative dispute resolution domestic mediation training course developed by entities providing domestic abuse services and mediation services for children and families and approved by the State Court Administrator. This course shall include advanced education in regard to the potential effects of domestic violence on the child; the nature and extent of domestic intimate partner abuse; the social and family dynamics of domestic intimate partner abuse; techniques for identifying and assisting families affected by domestic intimate partner abuse; and appropriate and safe mediation strategies to assist parties in developing a parenting plan, provisions for safety, and a transition plan, as necessary and relevant.

(4) In lieu of qualifying as a mediator under subsection (2) or (3) of this section, an attorney licensed to practice law in the State of Nebraska may serve as a parenting plan mediator if the parties agree to use such attorney as a mediator.

Source:Laws 2007, LB554, § 19; Laws 2019, LB595, § 38.

43-2939. Parenting Act mediator; duties; conflict of interest; report of child abuse or neglect; termination of mediation.

(1) A Parenting Act mediator, including an attorney serving as a parenting plan mediator pursuant to subsection (4) of section 43-2938, prior to meeting with the parties in an initial mediation session, shall provide an individual initial screening session with each party to assess the presence of child abuse or neglect, unresolved parental conflict, domestic intimate partner abuse, other forms of intimidation or coercion, or a party's inability to negotiate freely and make informed decisions. If any of these conditions exist, the mediator shall not proceed with the mediation session but shall proceed with a specialized alternative dispute resolution process that addresses safety measures for the parties, if the mediator is on the approved specialized list of an approved mediation center or court conciliation program, or shall refer the parties to a mediator who is so qualified. When public records such as current or expired protection orders, criminal domestic violence cases, and child abuse or neglect proceedings are provided to a mediator, such records shall be considered during the individual initial screening session to determine appropriate dispute resolution methods. The mediator has the duty to determine whether to proceed in joint session, individual sessions, or caucus meetings with the parties in order to address safety and freedom to negotiate. In any mediation or specialized alternative dispute resolution, a mediator has the ongoing duty to assess appropriateness of the process and safety of the process upon the parties.

(2) No mediator who represents or has represented one or both of the parties or has had either of the parties as a client as an attorney or a counselor shall mediate the case, unless such services have been provided to both participants and mediation shall not proceed in such cases unless the prior relationship has been disclosed, the role of the mediator has been made distinct from the earlier relationship, and the participants have been given the opportunity to fully choose to proceed. All other potential conflicts of interest shall be disclosed and discussed before the parties decide whether to proceed with that mediator.

(3) No mediator who is also a licensed attorney may, after completion of the mediation process, represent either party in the role of attorney in the same matter through subsequent legal proceedings.

(4) The mediator shall facilitate the mediation process. Prior to the commencement of mediation, the mediator shall notify the parties that, if the mediator has reasonable cause to believe that a child has been subjected to child abuse or neglect or if the mediator observes a child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, the mediator is obligated under section 28-711 to report such information to the authorized child abuse and neglect reporting agency and shall report such information unless the information has been previously reported. The mediator shall have access to court files for purposes of mediation under the Parenting Act. The mediator shall be impartial and shall use his or her best efforts to effect an agreement or parenting plan as required under the act. The mediator may interview the child if, in the mediator's opinion, such an interview is necessary or appropriate. The parties shall not bring the child to any sessions with the mediator unless specific arrangements have been made with the mediator in advance of the session. The mediator shall assist the parties in assessing their needs and the best interests of the child involved in the proceeding and may include other persons in the mediation process as necessary or appropriate. The mediator shall advise the parties that they should consult with an attorney.

(5) The mediator may terminate mediation if one or more of the following conditions exist:

(a) There is no reasonable possibility that mediation will promote the development of an effective parenting plan;

(b) Allegations are made of direct physical or significant emotional harm to a party or to a child that have not been heard and ruled upon by the court; or

(6) Until July 1, 2010, either party may terminate mediation at any point in the process. On and after July 1, 2010, a party may not terminate mediation until after an individual initial screening session and one mediation or specialized alternative dispute resolution session are held. The session after the individual initial screening session shall be an individual specialized alternative dispute resolution session if the screening indicated the existence of any condition specified in subsection (1) of this section.

Source:Laws 2007, LB554, § 20; Laws 2020, LB912, § 17.

43-2940. Mediation; uniform standards of practice; State Court Administrator; duties; mediation conducted in private.

(1) Mediation of cases under the Parenting Act shall be governed by uniform standards of practice adopted by the State Court Administrator. In adopting the standards of practice, the State Court Administrator shall consider standards developed by recognized associations of mediators and attorneys and other relevant standards governing mediation and other dispute resolution processes of proceedings for the determination of parenting plans or dissolution of marriage. The standards of practice shall include, but not be limited to, all of the following:

(a) Provision for the best interests of the child and the safeguarding of the rights of the child in regard to each parent, consistent with the act;

(b) Facilitation of the transition of the family by detailing factors to be considered in decisions concerning the child's future;

(c) The conducting of negotiations in such a way as to address the relationships between the parties, considering safety and the ability to freely negotiate and make decisions; and

(d) Provision for a specialized alternative dispute resolution process in cases where any of the conditions specified in subsection (1) of section 43-2939 exist.

(2) Mediation under the Parenting Act shall be conducted in private.

Source:Laws 2007, LB554, § 21.

43-2941. Mediation subject to other laws; claim of privilege; disclosures authorized.

Mediation of a parenting plan shall be subject to the Uniform Mediation Act and the Dispute Resolution Act, to the extent such acts are not in conflict with the Parenting Act. Unsigned mediated agreements under the Parenting Act are not subject to a claim of privilege under subdivision (a)(1) of section 25-2935. In addition to disclosures permitted in section 25-2936, a mediator under the Parenting Act may also disclose a party's failure to schedule an individual initial screening session or a mediation session.

Source:Laws 2007, LB554, § 22.

Cross References

Dispute Resolution Act, see section 25-2901.

Uniform Mediation Act, see section 25-2930.

43-2942. Costs.

The costs of the mediation process shall be paid by the parties. If the court orders the parties to mediation, the costs to the parties shall be charged according to a sliding fee scale as established by the State Court Administrator.

Source:Laws 2007, LB554, § 23.

43-2943. Rules; Parenting Act Fund; created; use; investment.

(1) The State Court Administrator may develop rules to implement the Parenting Act.

(2) The Parenting Act Fund is created. The State Court Administrator, through the Office of Dispute Resolution, approved mediation centers, and court conciliation programs, shall use the fund to carry out the Parenting Act. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2007, LB554, § 24; Laws 2008, LB1014, § 66.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-3001. Child in state custody; court records and information; court order authorized; information confidential; immunity from liability; school records as evidence; violation; penalty.

(1) Notwithstanding any other provision of law regarding the confidentiality of records and when not prohibited by the federal Privacy Act of 1974, as amended, juvenile court records and any other pertinent information that may be in the possession of school districts, school personnel, county attorneys, the Attorney General, law enforcement agencies, child advocacy centers, state probation personnel, state parole personnel, youth detention facilities, medical personnel, treatment or placement programs, the Department of Health and Human Services, the Department of Correctional Services, the Foster Care Review Office, local foster care review boards, child abuse and neglect investigation teams, child abuse and neglect treatment teams, or other multidisciplinary teams for abuse, neglect, or delinquency concerning a child who is in the custody of the state may be shared with individuals and agencies who have been identified in a court order authorized by this section.

(2) In any judicial proceeding concerning a child who is currently, or who may become at the conclusion of the proceeding, a ward of the court or state or under the supervision of the court, an order may be issued which identifies individuals and agencies who shall be allowed to receive otherwise confidential information concerning the child for legitimate and official purposes. The individuals and agencies who may be identified in the court order are the child's attorney or guardian ad litem, the parents' attorney, foster parents, appropriate school personnel, county attorneys, the Attorney General, authorized court personnel, law enforcement agencies, state probation personnel, state parole personnel, youth detention facilities, medical personnel, court appointed special advocate volunteers, treatment or placement programs, the Department of Health and Human Services, the Office of Juvenile Services, the Department of Correctional Services, the Foster Care Review Office, local foster care review boards, the office of Inspector General of Nebraska Child Welfare, child abuse and neglect investigation teams, child abuse and neglect treatment teams, other multidisciplinary teams for abuse, neglect, or delinquency, and other individuals and agencies for which the court specifically finds, in writing, that it would be in the best interest of the juvenile to receive such information. Unless the order otherwise states, the order shall be effective until the child leaves the custody of the state or supervision of the court or until a new order is issued.

(3) All information acquired by an individual or agency pursuant to this section shall be confidential and shall not be disclosed except to other persons who have a legitimate and official interest in the information and are identified in the court order issued pursuant to this section with respect to the child in question. A person who receives such information or who cooperates in good faith with other individuals and agencies identified in the appropriate court order by providing information or records about a child shall be immune from any civil or criminal liability. The provisions of this section granting immunity from liability shall not be extended to any person alleged to have committed an act of child abuse or neglect.

(4) In any proceeding under this section relating to a child of school age, certified copies of school records relating to attendance and academic progress of such child are admissible in evidence.

(5) Except as provided in subsection (4) of this section, any person who publicly discloses information received pursuant to this section shall be guilty of a Class III misdemeanor.

Source:Laws 1993, LB 719, § 1; Laws 1994, LB 988, § 27; Laws 1996, LB 1044, § 233; Laws 2006, LB 1113, § 42; Laws 2008, LB1014, § 67; Laws 2009, LB35, § 29; Laws 2012, LB998, § 17; Laws 2015, LB347, § 3.

43-3101. Court proceeding; notice to noncustodial parent.

A noncustodial parent shall be defined as an interested person, and reasonable attempts shall be made to notify him or her of any court proceeding taken (1) by, against, or on behalf of his or her child or (2) by, against, or on behalf of the custodial parent if such court proceeding affects the child. The noncustodial parent need not be present at the commencement of such court proceeding.

Source:Laws 1994, LB 451, § 3.

43-3102. Waiver of right to counsel by juvenile; writing; when waiver not allowed; Supreme Court; duties.

(1) In any court proceeding, any waiver of the right to counsel by a juvenile shall be made in open court, shall be recorded, and shall be confirmed in a writing signed by the juvenile.

(2) A court shall not accept a juvenile's waiver of the right to counsel unless the waiver satisfies subsection (1) of this section and is an affirmative waiver that is made intelligently, voluntarily, and understandingly. In determining whether such waiver was made intelligently, voluntarily, and understandingly, the court shall consider, among other things: (a) The age, intelligence, and education of the juvenile, (b) the juvenile's emotional stability, and (c) the complexity of the proceedings.

(3) On or before July 1, 2022, the Supreme Court shall provide, by court rule, a process to ensure that a juvenile has consulted with counsel, and if not, is provided the opportunity to consult with counsel prior to the juvenile exercising their right to waive their right to counsel.

(4) The court shall ensure that a juvenile represented by an attorney consults with his or her attorney before any waiver of counsel.

(5) No parent, guardian, custodian, or other person may waive the juvenile's right to counsel.

(6) A juvenile's right to be represented by counsel may not be waived in the following circumstances:

(a) If the juvenile is under the age of fourteen;

(b) For a detention hearing;

(d) If there is a motion to transfer the juvenile from juvenile court to county court or district court.

Source:Laws 2016, LB894, § 16; Laws 2021, LB307, § 3.

43-3201. Repealed. Laws 2019, LB2, § 1.

43-3301. Act, how cited.

Sections 43-3301 to 43-3326 shall be known and may be cited as the License Suspension Act.

Source:Laws 1997, LB 752, § 1; Laws 1999, LB 594, § 27.

43-3302. Legislative intent.

It is the intent of the Legislature to encourage the use of all proven techniques for the enforcement of support orders. The Legislature finds that the potential suspension of a professional, occupational, or recreational license or a motor vehicle operator's license for failure to pay child, spousal, and medical support is an effective technique for the enforcement of support orders, particularly for non-wage-earning and self-employed license holders who are not in compliance with support orders. It is the intent of the Legislature to encourage license holders to comply with their legal obligations and to add to the tools available for the enforcement of support orders. Therefor, the Department of Health and Human Services, county attorneys, authorized attorneys, or courts of competent jurisdiction are authorized to initiate actions under the License Suspension Act against individuals who are not in compliance with support orders.

Source:Laws 1997, LB 752, § 2.

43-3303. Definitions, where found.

For purposes of the License Suspension Act, the definitions found in sections 43-3304 to 43-3313 apply.

Source:Laws 1997, LB 752, § 3; Laws 1999, LB 594, § 28.

43-3304. Authorized attorney, defined.

Authorized attorney has the same meaning as found in section 43-1704.

Source:Laws 1997, LB 752, § 4.

43-3305. Child support, defined.

Child support has the same meaning as found in section 43-1705.

Source:Laws 1997, LB 752, § 5.

43-3305.01. Department, defined.

Department means the Department of Health and Human Services.

Source:Laws 1999, LB 594, § 29; Laws 2007, LB296, § 153.

43-3306. Medical support, defined.

Medical support has the same meaning as found in section 43-512.

Source:Laws 1997, LB 752, § 6.

43-3307. Operator's license, defined.

Operator's license has the same meaning as found in section 60-474 and includes a commercial driver's license as defined in section 60-464 and a restricted commercial driver's license as defined in section 60-476.03 except as specifically provided otherwise in section 43-3318.

Source:Laws 1997, LB 752, § 7.

43-3308. Professional or occupational license, defined.

Professional or occupational license means a license, certificate, registration, permit, or other similar document evidencing admission to or granting authority to engage in a profession or occupation in the State of Nebraska.

Source:Laws 1997, LB 752, § 8.

43-3309. Recreational license, defined.

Recreational license means a license, certificate, registration, permit, tag, sticker, or other similar document or identifier evidencing permission to hunt, fish, or trap for furs in the State of Nebraska.

Source:Laws 1997, LB 752, § 9.

43-3310. Relevant licensing authority, defined.

Relevant licensing authority means a board, bureau, commission, committee, department, political subdivision, or other public or private entity that is authorized under the laws of the State of Nebraska to grant, issue, or renew a professional, occupational, or recreational license.

Source:Laws 1997, LB 752, § 10.

43-3311. Spousal support, defined.

Spousal support has the same meaning as found in section 43-1715.

Source:Laws 1997, LB 752, § 11.

43-3312. Support order, defined.

Support order has the same meaning as found in section 43-1717.

Source:Laws 1997, LB 752, § 12.

43-3313. Support, defined.

Support in the definitions of child support, medical support, and spousal support means providing necessary shelter, food, clothing, care, medical support, medical attention, education expenses, or funeral expenses or any other reasonable and necessary expense.

Source:Laws 1997, LB 752, § 13; Laws 2003, LB 245, § 4.

43-3314. Delinquent or past-due support; notice to license holder; contents.

(1) When the department or a county attorney or authorized attorney has made reasonable efforts to verify and has reason to believe that a license holder in a case receiving services under Title IV-D of the Social Security Act, as amended, (a) is delinquent on a support order in an amount equal to the support due and payable for more than a three-month period of time, (b) is not in compliance with a payment plan for amounts due as determined by a county attorney, an authorized attorney, or the department for such past-due support, or (c) is not in compliance with a payment plan for amounts due under a support order pursuant to a court order for such past-due support, and therefor determines to certify the license holder to the appropriate licensing authority, the department, county attorney, or authorized attorney shall send written notice to the license holder by regular United States mail to the last-known address of the license holder or to the last-known address of the license holder available to the court pursuant to section 42-364.13. For purposes of this section, reasonable efforts to verify means reviewing the case file and having written or oral communication with the clerk of the court of competent jurisdiction and with the license holder. Reasonable efforts to verify may also include written or oral communication with custodial parents.

(2) The notice shall specify:

(a) That the Department of Health and Human Services, county attorney, or authorized attorney intends to certify the license holder to the Department of Motor Vehicles and to relevant licensing authorities pursuant to subsection (3) of section 43-3318 as a license holder described in subsection (1) of this section;

(b) The court or agency of competent jurisdiction which issued the support order or in which the support order is registered;

(c) That an enforcement action for a support order will incorporate any amount delinquent under the support order which may accrue in the future;

(d) That a license holder who is in violation of a support order can come into compliance by:

(i) Paying current support if a current support obligation exists; and

(ii) Paying all past-due support or, if unable to pay all past-due support and if a payment plan for such past-due support has not been determined, by making payments in accordance with a payment plan determined by the county attorney, the authorized attorney, or the Department of Health and Human Services for such past-due support; and

(e) That within thirty days after issuance of the notice, the license holder may either:

(i) Request administrative review in the manner specified in the notice to contest a mistake of fact. Mistake of fact means an error in the identity of the license holder or an error in the determination of whether the license holder is a license holder described in subsection (1) of this section; or

(ii) Seek judicial review by filing a petition in the court of competent jurisdiction of the county where the support order was issued or registered or, in the case of a foreign support order not registered in Nebraska, the court of competent jurisdiction of the county where the child resides if the child resides in Nebraska or the court of competent jurisdiction of the county where the license holder resides if the child does not reside in Nebraska.

Source:Laws 1997, LB 752, § 14; Laws 1999, LB 594, § 30; Laws 2007, LB296, § 154; Laws 2024, LB1200, § 4.
Operative Date: April 16, 2024

43-3315. License holder; judicial review; notice; effect.

If the license holder makes a timely request for judicial review after receiving a notice under section 43-3314, the court of competent jurisdiction as specified in subdivision (2)(e)(ii) of section 43-3314 shall have jurisdiction to hear the license holder's petition. Upon the timely notification by the license holder to the Department of Health and Human Services that the license holder is seeking judicial review as provided under this section, the Department of Health and Human Services shall stay the action to certify the license holder to the Department of Motor Vehicles and relevant licensing authorities as a license holder described in subsection (1) of section 43-3314 pending the outcome of judicial review.

Source:Laws 1997, LB 752, § 15.

43-3316. License holder; administrative review; procedure.

If the license holder makes a timely request for administrative review after receiving a notice under section 43-3314, the Department of Health and Human Services shall provide an opportunity for a hearing in accordance with the Administrative Procedure Act. The issues that may be determined at the hearing are limited to whether there has been an error in the identity of the license holder or in the determination of whether the license holder is a license holder described in subsection (1) of section 43-3314. The license holder may raise additional issues, including the reasonableness of a payment plan for a support order, to be preserved for appeal to the district court as provided under the Administrative Procedure Act. The Department of Health and Human Services shall stay the action to certify the license holder to the Department of Motor Vehicles and relevant licensing authorities as a license holder described in subsection (1) of section 43-3314 pending the outcome of the hearing. The Department of Health and Human Services shall notify the license holder of its decision.

Source:Laws 1997, LB 752, § 16.

Cross References

Administrative Procedure Act, see section 84-920.

43-3317. License holder; appeal of administrative decision; procedure.

Any person aggrieved by a decision of the department pursuant to section 43-3316 may, upon exhaustion of the procedures for administrative review provided under the Administrative Procedure Act, seek judicial review within ten days after the issuance of notice of the department's decision pursuant to section 43-3316. Notwithstanding subdivision (2)(a) of section 84-917, proceedings for review shall be instituted by filing a petition in the court of competent jurisdiction of the county where the support order was issued or registered or, in the case of a foreign support order not registered in Nebraska, the court of competent jurisdiction as specified in subdivision (2)(e)(ii) of section 43-3314.

Source:Laws 1997, LB 752, § 17; Laws 2007, LB296, § 155.

Cross References

Administrative Procedure Act, see section 84-920.

43-3318. Certification to relevant licensing authorities; when; procedure; effect.

(1) The Department of Health and Human Services, county attorney, authorized attorney, or court of competent jurisdiction may certify in writing to the Department of Motor Vehicles, relevant licensing authorities, and, if the license holder is a member of the Nebraska State Bar Association, the Counsel for Discipline of the Nebraska Supreme Court, that a license holder is a license holder described in subsection (1) of section 43-3314 if:

(a) The license holder does not timely request either administrative review or judicial review upon issuance of a notice under subsection (2) of section 43-3314, is still a license holder described in subsection (1) of section 43-3314 thirty-one days after issuance of the notice, and does not obtain a written confirmation of compliance from the Department of Health and Human Services, county attorney, or authorized attorney pursuant to section 43-3320 within thirty-one days after issuance of the notice;

(b) The Department of Health and Human Services issues a decision after a hearing that finds the license holder is a license holder described in subsection (1) of section 43-3314, the license holder is still a license holder described in such subsection thirty-one days after issuance of that decision, and the license holder does not seek judicial review of the decision within the ten-day appeal period provided in section 43-3317; or

(c) The court of competent jurisdiction enters a judgment on a petition for judicial review, initiated under either section 43-3315 or 43-3317, that finds the license holder is a license holder described in subsection (1) of section 43-3314.

(2) The court of competent jurisdiction, after providing appropriate notice, may certify a license holder to the Department of Motor Vehicles and relevant licensing authorities if a license holder has failed to comply with subpoenas or warrants relating to paternity or child support proceedings.

(3) If the Department of Health and Human Services, county attorney, authorized attorney, or court of competent jurisdiction determines to certify a license holder to the appropriate licensing authority, then the department, county attorney, authorized attorney, or court of competent jurisdiction shall certify a license holder in the following order and in compliance with the following restrictions:

(a) To the Department of Motor Vehicles to suspend the license holder's operator's license, except the Department of Motor Vehicles shall not suspend the license holder's commercial driver's license or restricted commercial driver's license. If a license holder possesses a commercial driver's license or restricted commercial driver's license, the Department of Health and Human Services, county attorney, authorized attorney, or court of competent jurisdiction shall certify such license holder pursuant to subdivision (b) of this subsection. If the license holder fails to come into compliance with the support order as provided in section 43-3314 or with subpoenas and warrants relating to paternity or child support proceedings within ten working days after the date on which the license holder's operator's license suspension becomes effective, then the department, county attorney, authorized attorney, or court of competent jurisdiction may certify the license holder pursuant to subdivision (b) of this subsection without further notice;

(b) To the relevant licensing authority to suspend the license holder's recreational license once the Game and Parks Commission has operative the electronic or other automated retrieval system necessary to suspend recreational licenses. If the license holder does not have a recreational license and until the Game and Parks Commission has operative the electronic or other automated retrieval system necessary to suspend recreational licenses, the department, county attorney, authorized attorney, or court of competent jurisdiction may certify the license holder pursuant to subdivision (c) of this subsection. If the license holder fails to come into compliance with the support order as provided in section 43-3314 or with subpoenas and warrants relating to paternity or child support proceedings within ten working days after the date on which the license holder's recreational license suspension becomes effective, the department, county attorney, authorized attorney, or court of competent jurisdiction may certify the license holder pursuant to subdivision (c) of this subsection without further notice; and

(c) To the relevant licensing authority to suspend the license holder's professional license, occupational license, commercial driver's license, or restricted commercial driver's license.

(4) If the Department of Health and Human Services, county attorney, authorized attorney, or court of competent jurisdiction certifies the license holder to the Department of Motor Vehicles, the Department of Motor Vehicles shall suspend the operator's license of the license holder ten working days after the date of certification. The Department of Motor Vehicles shall without undue delay notify the license holder by regular United States mail that the license holder's operator's license will be suspended and the date the suspension becomes effective. No person shall be issued an operator's license by the State of Nebraska if at the time of application for a license the person's operator's license is suspended under this section. Any person whose operator's license has been suspended shall return his or her license to the Department of Motor Vehicles within five working days after receiving the notice of the suspension. If any person fails to return the license, the Department of Motor Vehicles shall direct any peace officer to secure possession of the operator's license and to return it to the Department of Motor Vehicles. The peace officer who is directed to secure possession of the license shall make every reasonable effort to secure the license and return it to the Department of Motor Vehicles or shall show good cause why the license cannot be returned. An appeal of the suspension of an operator's license under this section shall be pursuant to section 60-4,105. A license holder whose operator's license has been suspended under this section may apply for an employment driving permit as provided by sections 60-4,129 and 60-4,130, except that the license holder is not required to fulfill the driver improvement or driver education and training course requirements of subsection (2) of section 60-4,130.

(5) Except as provided in subsection (6) of this section as it pertains to a license holder who is a member of the Nebraska State Bar Association, if the Department of Health and Human Services, county attorney, authorized attorney, or court of competent jurisdiction certifies the license holder to a relevant licensing authority, the relevant licensing authority, notwithstanding any other provision of law, shall suspend the license holder's professional, occupational, or recreational license and the license holder's right to renew the professional, occupational, or recreational license ten working days after the date of certification. The relevant licensing authority shall without undue delay notify the license holder by regular United States mail that the license holder's professional, occupational, or recreational license will be suspended and the date the suspension becomes effective.

(6) If the department, county attorney, authorized attorney, or court of competent jurisdiction certifies a license holder who is a member of the Nebraska State Bar Association to the Counsel for Discipline of the Nebraska Supreme Court, the Nebraska Supreme Court may suspend the license holder's license to practice law. It is the intent of the Legislature to encourage all license holders to comply with their child support obligations. Therefor, the Legislature hereby requests that the Nebraska Supreme Court adopt amendments to the rules regulating attorneys, if necessary, which provide for the discipline of an attorney who is delinquent in the payment of or fails to pay his or her child support obligation.

(7) The Department of Health and Human Services, or court of competent jurisdiction when appropriate, shall send by regular United States mail to the license holder at the license holder's last-known address a copy of any certification filed with the Department of Motor Vehicles or a relevant licensing authority and a notice which states that the license holder's operator's license will be suspended ten working days after the date of certification and that the suspension of a professional, occupational, or recreational license pursuant to subsection (5) of this section becomes effective ten working days after the date of certification.

Source:Laws 1997, LB 752, § 18; Laws 1999, LB 594, § 31; Laws 2004, LB 1207, § 43; Laws 2007, LB296, § 156; Laws 2024, LB1200, § 5.
Operative Date: April 16, 2024

43-3319. License holder; motion or application to modify support order; effect.

If the license holder files a motion or application to modify a support order, the department, county attorney, or authorized attorney, upon notification by the license holder, shall stay the action to certify the license holder under section 43-3318 until disposition of the motion or application by the court or agency of competent jurisdiction. If the license holder requests review of the support order under section 43-512.12, the department shall stay the action to certify the license holder pending final disposition of the review and modification process.

Source:Laws 1997, LB 752, § 19; Laws 2007, LB296, § 157.

43-3320. License holder; written confirmation of compliance.

(1) When a license holder comes into compliance with the support order as provided in section 43-3314, the department, county attorney, or authorized attorney shall provide the license holder with written confirmation that the license holder is in compliance.

(2) When a license holder comes into compliance with subpoenas and warrants relating to paternity or child support proceedings, the court of competent jurisdiction shall provide the license holder with written confirmation that the license holder is in compliance.

Source:Laws 1997, LB 752, § 20; Laws 2007, LB296, § 158.

43-3321. License holder; written confirmation of compliance; reinstatement or renewal of license; fee.

(1) Upon presentation by the license holder of a written confirmation of compliance to the Department of Motor Vehicles, the license holder may have his or her operator's license reinstated upon payment of a reinstatement fee of fifty dollars. The Department of Motor Vehicles shall remit the fee to the State Treasurer for credit to the Department of Motor Vehicles Cash Fund.

(2) Upon presentation by the license holder of a written confirmation of compliance to the relevant licensing authority and upon payment of any fee which may be prescribed by the relevant licensing authority, the license holder may have his or her professional, occupational, or recreational license reinstated or renewed. The professional, occupational, or recreational license may be automatically reinstated or renewed pursuant to the relevant licensing authority's least restrictive reinstatement or renewal procedure applicable to license suspension, probation, or other licensing authority disciplinary action, except that the license holder must meet any other customary or standard requirement for reinstatement or renewal as required by the relevant licensing authority.

Source:Laws 1997, LB 752, § 21; Laws 2001, LB 38, § 3.

43-3322. Erroneous suspension.

If a motor vehicle operator's license or a professional, occupational, or recreational license is found to have been suspended erroneously, the license holder shall have his or her license reinstated or renewed without the payment of any reinstatement or renewal fee, but if a fee was paid because of the error, such fee shall be returned to the license holder by the relevant licensing authority.

Source:Laws 1997, LB 752, § 22.

43-3323. Rules and regulations.

The department shall adopt and promulgate rules and regulations to carry out the License Suspension Act.

Source:Laws 1997, LB 752, § 23; Laws 2007, LB296, § 159.

43-3324. Information to Department of Health and Human Services; agreements authorized.

The Department of Motor Vehicles and relevant licensing authorities shall provide to the Department of Health and Human Services specified information about license holders in a manner agreed to by the Department of Health and Human Services and the Department of Motor Vehicles or the relevant licensing authority annually on a date determined by the Department of Health and Human Services. The information shall include:

(1) The name of the license holder;

(2) The license holder's address of record;

(3) The license holder's federal employer identification number or social security number, if available and permissible under law, and the license holder's date of birth;

(4) The type of license held;

(5) The effective date of the license or renewal;

(6) The expiration date of the license; and

(7) The status of the license as active or inactive.

The Department of Health and Human Services may enter into agreements with the Director of Motor Vehicles and relevant licensing authorities to carry out this section. Such agreements with the Game and Parks Commission with regard to recreational license holders shall only be made when electronic or other automated retrieval systems are available for such information.

Source:Laws 1997, LB 752, § 24.

43-3325. Act; how construed.

Nothing in the License Suspension Act shall prevent the department, the county attorney, the authorized attorney, or the court of competent jurisdiction from taking other enforcement actions.

Source:Laws 1997, LB 752, § 25; Laws 2007, LB296, § 160.

43-3326. Reports to Legislature.

The department shall issue electronically a report to the Legislature on or before January 31 of each year which discloses the number of professional, occupational, or recreational licenses which were suspended and the number which were erroneously suspended and restored as a result of the License Suspension Act for the prior year. The Director of Motor Vehicles shall issue electronically a report to the Legislature on or before January 31 of each year which discloses the number of operators' licenses which were suspended and the number which were erroneously suspended and restored as a result of the License Suspension Act for the prior year.

Source:Laws 1997, LB 752, § 26; Laws 1999, LB 594, § 32; Laws 2007, LB296, § 161; Laws 2012, LB782, § 49.

43-3327. Support orders and genetic testing; access to information without court or administrative order; fee authorized; confidentiality; violation; penalty.

(1) For purposes of this section:

(a) Authorized attorney has the same meaning as in section 43-1704;

(b) Department means the Department of Health and Human Services;

(d) Support order has the same meaning as in section 43-1717.

(2) Notwithstanding any other provision of law regarding the confidentiality of records, the department, a county attorney, or an authorized attorney may, without obtaining a court or administrative order:

(a) Compel by subpoena (i) information relevant to establishing, modifying, or enforcing a support order and (ii) genetic testing of an individual relevant to establishing, modifying, or enforcing a support order. Such information includes, but is not limited to, relevant financial records and other relevant records including the name, address, and listing of financial assets or liabilities from public or private entities. If a person fails or refuses to obey the subpoena, the department, a county attorney, or an authorized attorney may apply to a judge of the court of competent jurisdiction for an order directing such person to comply with the subpoena. Failure to obey such court order may be punished by the court as contempt of court; and

(b) Obtain access to information contained in the records, including automated databases, of any state or local agency which is relevant to establishing, modifying, or enforcing a support order or to ordering genetic testing. Such records include, but are not limited to, vital records, state and local tax and revenue records, titles to real and personal property, employment security records, records of correctional institutions, and records concerning the ownership and control of business entities.

(3) The department shall subpoena or access information as provided in subsection (2) of this section at the request of a state agency of another state which administers Title IV-D of the federal Social Security Act for such information. The department may charge a fee for this service which does not exceed the cost of providing the service.

(4) All information acquired pursuant to this section is confidential and cannot be disclosed or released except to other agencies which have a legitimate and official interest in the information for carrying out the purposes of this section. A person who receives such information, subject to the provisions of this subsection on confidentiality and restrictions on disclosure or release, is immune from any civil or criminal liability. A person who cooperates in good faith by providing information or records under this section is immune from any civil or criminal liability. Any person acquiring information pursuant to this section who discloses or releases such information in violation of this subsection is guilty of a Class III misdemeanor. The disclosure or release of such information regarding an individual is a separate offense from information disclosed or released regarding any other individual.

Source:Laws 1997, LB 752, § 27; Laws 1999, LB 594, § 33; Laws 2007, LB296, § 162.

43-3328. Legislative intent.

It is the intent of the Legislature to encourage the use of all proven techniques for the enforcement of support orders. It is also the intent of the Legislature to effectuate reasonable welfare reform and to comply with the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. The Legislature finds and declares that a bank match system and the potential for an administrative attachment of personal assets of an obligor held by a payor or held by a financial institution is an effective tool for the collection of unpaid support from obligors who are not in compliance with support orders. It is the intent of the Legislature to encourage obligors to comply with their legal obligations and to add to the tools available for the enforcement of support orders by authorizing the Department of Health and Human Services and county attorneys or authorized attorneys to initiate bank match actions and administrative attachments as described in sections 43-3328 to 43-3339.

Source:Laws 1997, LB 752, § 28.

43-3329. Terms, defined.

For purposes of sections 43-3328 to 43-3339, the following definitions apply:

(1) Account means a demand deposit account, checking or negotiable withdrawal order account, savings account, time deposit account, or money-market mutual fund account;

(2) Authorized attorney has the same meaning as found in section 43-1704;

(3) Child support has the same meaning as found in section 43-1705;

(4) Department means the Department of Health and Human Services and if the department designates, includes a county attorney or authorized attorney;

(5) Financial institution means every federal or state commercial or savings bank, including savings and loan associations and cooperative banks, federal or state chartered credit unions, benefit associations, insurance companies, safe deposit companies, any money-market mutual fund as defined in section 851(a) of the Internal Revenue Code that seeks to maintain a constant net asset value of one dollar in accordance with 17 C.F.R. 270.2a-7, any broker, brokerage firm, trust company, or unit investment trust, or any other similar entity doing business or authorized to do business in the State of Nebraska;

(6) Match means a comparison by automated or other means by name and social security number of a list of obligors provided to a financial institution by the department and a list of depositors of any financial institution;

(7) Medical support has the same meaning as found in section 43-512;

(8) Obligor means a person who owes a duty of support pursuant to a support order;

(9) Payor includes a person, partnership, limited partnership, limited liability partnership, limited liability company, corporation, or other entity doing business or authorized to do business in the State of Nebraska, including a financial institution, or a department or an agency of state, county, or city government;

(10) Spousal support has the same meaning as found in section 43-1715;

(11) Support in the definitions of child support, medical support, and spousal support means providing necessary shelter, food, clothing, care, medical support, medical attention, education expenses, or funeral expenses or any other reasonable and necessary expense; and

(12) Support order has the same meaning as found in section 43-1717.

Source:Laws 1997, LB 752, § 29; Laws 2003, LB 245, § 5; Laws 2007, LB296, § 163.

43-3330. Listing of obligors; financial institution; duties; confidentiality.

A financial institution shall receive from the department a listing of obligors to be used in matches within the financial institution's system. The listing from the department shall include the name and social security number or taxpayer identification number of each obligor to be used in matches within the financial institution's system. The financial institution shall receive the listing within thirty days after the end of each calendar quarter subsequent to January 1, 1998, and shall match the listing to its records of accounts held in one or more individuals' names which are open accounts and such accounts closed within the preceding calendar quarter within thirty days after receiving the listing and provide the department with a match listing of all matches made within five working days of the match. The match listing from the financial institution shall include the name, address, and social security number or taxpayer identification number of each obligor matched and the balance of each account. The financial institution shall also provide the names and addresses of all other owners of accounts in the match listing as reflected on a signature card or other similar document on file with the financial institution. The financial institution shall submit all match listings by disk, magnetic tape, or other medium approved by the department. Nothing in this section shall (1) require a financial institution to disclose the account number assigned to the account of any individual or (2) serve to encumber the ownership interest of any person in or impact any right of setoff against an account. The financial institution shall maintain the confidentiality of all records supplied and shall use the records only for the purposes of this section. To maintain the confidentiality of the listing and match listing, the department shall implement appropriate security provisions for the listing and match listing which are as stringent as those established under the Federal Tax Information Security Guidelines for federal, state, and local agencies.

Source:Laws 1997, LB 752, § 30; Laws 2010, LB712, § 39.

43-3331. Financial institution; disclosure or release of information; immunity.

A financial institution is not liable under any state or local law to any individual or to the department for disclosure or release of information to the department for the purpose of establishing, modifying, or enforcing a support order or for any other action taken in good faith to comply with the requirements of section 43-3330. Sections 43-3328 to 43-3339 shall not be construed to make a financial institution responsible or liable to any extent for assuring that the department maintains the confidentiality of information disclosed under section 43-3330.

Source:Laws 1997, LB 752, § 31.

43-3332. Financial institution; fees authorized.

A financial institution may charge a reasonable fee, not to exceed actual cost, to be paid by the department for the service of reporting matches as required by section 43-3330 and may charge a fee, not to exceed actual cost, to be paid by the department for the necessary upgrades to an existing system that are directly related to compliance with section 43-3330 and that have been approved by the department.

Source:Laws 1997, LB 752, § 32.

43-3333. Seizure of obligor's property; notice of arrearage; contents; appeal.

(1) In a case which is receiving services under Title IV-D of the federal Social Security Act, as amended, when the department has made reasonable efforts to verify and has reason to believe payment on a support order is in arrears in an amount equal to the support due and payable for more than a three-month period of time or upon the request of the state agency of another state which administers Title IV-D of the federal Social Security Act, and therefor determines to seize an obligor's property, the department shall send written notice to the obligor by first-class mail to the last-known address of the obligor or to the last-known address of the obligor available to the court pursuant to section 42-364.13. For purposes of this section, reasonable efforts to verify means reviewing the case file and having written or oral communication with the clerk of the district court.

(2) The notice of arrearage shall:

(a) Specify the court or agency which issued the support order;

(b) Specify the arrearage under the support order which the obligor owes as of the date of the notice or other date certain;

(d) State clearly, "Your property may be seized without further notice if you do not respond or clear up the arrearage"; and

(e) Specify that within twenty days after the notice is mailed, the obligor may request, in writing, a hearing to contest a mistake of fact. For purposes of this section, mistake of fact means an error in the amount of the arrearage or an error in the identity of the obligor.

(3) If the obligor files a written request for a hearing based upon a mistake of fact within twenty days after the notice is mailed, the department shall provide an opportunity for a hearing and shall stay enforcement action under sections 43-3333 to 43-3337 until the administrative appeal process is completed.

Source:Laws 1997, LB 752, § 33; Laws 2007, LB296, § 164.

43-3334. Order to withhold and deliver; when; contents; payor; duties; fee.

(1) The department may send a payor an order to withhold and deliver specifically identified property of any kind due, owing, or belonging to an obligor if (a) the department has reason to and does believe that there is in the possession of the payor property which is due, owing, or belonging to an obligor, (b) payment on a support order is in arrears, (c) the department sent a notice of arrearage to the obligor pursuant to section 43-3333 at least thirty days prior to sending the notice to withhold and deliver, and (d) no hearing was requested or after a hearing the department determined that an arrearage did exist or that there was no mistake of fact.

(2) The order to withhold and deliver shall state that notice has been mailed to the obligor in accordance with the requirements of subdivision (1)(c) of this section and that the obligor has not requested a hearing or, after a hearing, the department has determined that an arrearage exists or that there was no mistake of fact, the amount in arrears, the social security number of the obligor, the court or agency to which the property is to be delivered, instructions for transmitting the property, and information regarding the requirements found in subsection (3) of this section. The order shall include written questions regarding the property of every description, including whether or not any other person has an ownership interest in the property, and the credits of the obligor which are in the possession or under the control of the payor at the time the order is received.

(3) Upon receipt of an order to withhold and deliver, a payor shall:

(a) Hold property that is subject to the order and that is in the possession or under the control of the payor at the time the order to withhold and deliver was received, to the extent of the amount of the arrearage stated in the order until the payor receives further notice from the department;

(b) Answer all of the questions asked of the payor in the order, supply the name and address of any person that has an ownership interest in the property sought to be reached, and return such information to the department within five business days after receiving the order; and

(c) Upon further notice from the department, deliver any property which may be subject to the order to the court or agency designated in the order or release such property or portion thereof.

(4) An order to withhold and deliver shall have the same priority as a garnishment for the support of a person pursuant to subsection (4) of section 25-1056.

(5) If the payor is a financial institution, such financial institution may deduct and retain a processing fee from any amounts turned over to the department under this section. The processing fee shall not exceed ten dollars for each account turned over to the department.

Source:Laws 1997, LB 752, § 34; Laws 2004, LB 999, § 30; Laws 2007, LB296, § 165.

43-3335. Order to withhold and deliver; notice to obligor; contents; appeal.

(1) Within five days after the issuance of the order to withhold and deliver, the department shall send written notice to the obligor by first-class mail. The notice shall be dated and shall specify the payor to which an order to withhold and deliver was sent, the amount due, the steps to be followed to release the property, the time period in which to respond to such notice, and the court or agency of competent jurisdiction which issued the support order.

(2) The obligor may request a hearing to contest a mistake of fact by sending a written request to the department within seven days after the date of the notice. The department shall provide an opportunity for a hearing within ten days after receipt of the written request and shall stay enforcement actions under sections 43-3333 to 43-3337 until the administrative appeal process is completed.

Source:Laws 1997, LB 752, § 35; Laws 2007, LB296, § 166.

43-3336. Order to withhold and deliver; co-owner; notice; contents; appeal.

(1) If, after receiving the information from the payor in subdivision (3)(b) of section 43-3334, the department has knowledge that another person has an ownership interest or may claim an ownership interest in any property sought to be reached which is in the possession or under the control of the payor as the property of the obligor, the department shall send written notice to such person or persons by certified mail, return receipt requested. The notice shall be dated and shall specify why the order to withhold and deliver was issued, the payor to which the order to withhold and deliver was sent, and that the person has a right to request a hearing by the department within fifteen days after the date of the notice to establish that the property or any part thereof is not the property of the obligor. The department shall provide an opportunity for hearing to a person making such request and shall stay enforcement actions under sections 43-3333 to 43-3337 until the administrative appeal process is completed.

(2) Any person other than the obligor claiming an ownership interest in any property sought to be reached which is in the possession or under the control of the payor as the property of the obligor has a right to timely request a hearing by the department to establish that the property or any part thereof is not the property of the obligor. The department shall provide an opportunity for hearing to a person making such request and shall stay enforcement actions under sections 43-3333 to 43-3337 until the administrative appeal process is completed. If the property or any part of the property which is in the possession or under the control of the payor is not the property of the obligor, the payor is discharged as to that property which is not the obligor's.

Source:Laws 1997, LB 752, § 36; Laws 2007, LB296, § 167.

43-3337. Order to withhold and deliver; payor's liability.

(1) If a payor fails or refuses to withhold or deliver property subject to an order to withhold and deliver, judgment may be entered by the court which issued or registered the support order for the amount of the arrearages stated in the order or the amount of the property or credits of the obligor in the possession or under the control of the payor at the time the order to withhold and deliver was received, whichever is less, unless the payor can show cause as to why the property was not withheld or delivered.

(2) Compliance with the order by the payor operates as a discharge of the payor's liability to the obligor or beneficiary as to the portion of the obligor's property withheld or delivered.

(3) A payor is not liable to any individual or to the department for responding to an order to withhold and deliver or for holding, refusing to release to the obligor, or delivering any property of an obligor in compliance with an order to withhold and deliver or for any other action taken in good faith to comply with the requirements of sections 43-3328 to 43-3339 regardless of whether such action was specifically authorized or described by such sections.

Source:Laws 1997, LB 752, § 37.

43-3338. Judicial review.

Any person aggrieved by a determination of the department under sections 43-3328 to 43-3339, upon exhaustion of the procedures for administrative review provided in such sections, or the department may seek judicial review in the court in which the support order was issued or registered.

Source:Laws 1997, LB 752, § 38; Laws 2007, LB296, § 168.

43-3339. Rules and regulations.

The department shall adopt and promulgate rules and regulations to carry out sections 43-3328 to 43-3339.

Source:Laws 1997, LB 752, § 39.

43-3340. Social security numbers; recorded; when; Department of Health and Human Services; duties.

(1) To aid child support enforcement pursuant to federal law, 42 U.S.C. 666(a), the social security numbers of the following individuals shall be recorded on the application, in the court records, or on the death certificate, as appropriate:

(a) Any applicant for a professional license, commercial driver's license, occupational license, or marriage license;

(b) Any individual who is subject to a divorce decree, support order, or paternity determination or acknowledgment; and

(2) The Department of Health and Human Services shall adopt and promulgate rules and regulations which provide a procedure for the collection of the social security numbers recorded pursuant to this section and for the use of such numbers in the child support enforcement as provided in 42 U.S.C. 666(a).

Source:Laws 1997, LB 752, § 48.

43-3341. Terms, defined.

For purposes of sections 43-3341 to 43-3347:

(1) Business day means a day on which state offices are open for regular business;

(2) Child support has the same meaning as found in section 43-1705;

(3) Department means the Department of Health and Human Services;

(4) Medical support has the same meaning as found in section 43-512;

(5) Obligee means a person to whom a duty of support is owed pursuant to a support order;

(6) Obligor means a person who owes a duty of support pursuant to a support order;

(7) Normal business hours means 7 a.m. to 6 p.m. Central Time;

(8) Spousal support has the same meaning as found in section 43-1715;

(9) State Disbursement Unit means the unit established in section 43-3342;

(10) Support has the same meaning as found in section 43-3313;

(11) Support order has the same meaning as found in section 43-1717; and

(12) Title IV-D Division means the Title IV-D Division of the department which is the single organizational unit of the state that has the responsibility for administering or supervising the administration of the state plan under Title IV-D of the federal Social Security Act.

Source:Laws 1999, LB 637, § 1; Laws 2000, LB 972, § 28.

43-3342. State Disbursement Unit; created.

There is hereby created a State Disbursement Unit for the statewide collection and disbursement of support order payments. The State Disbursement Unit shall be administered and operated directly by a public or private entity or state officer as designated by the Title IV-D Division. The designation shall be subject to confirmation by a majority of the members of the Legislature. The entity or officer as designated shall be directly responsible to the Title IV-D Division.

In employing initial staff for the unit, a hiring preference shall be given to employees of the clerks of the district court.

Source:Laws 1999, LB 637, § 2; Laws 2000, LB 972, § 29.

43-3342.01. State Disbursement Unit; Title IV-D Division; duties; records.

(1) The responsibilities of the State Disbursement Unit shall include the following:

(a) Receipt of payments, except payments made pursuant to subdivisions (1)(a) and (1)(b) of section 42-369, and disbursements of such payments to obligees, the department, and the agencies of other states;

(b) Accurate identification of payments;

(d) Furnishing to any obligor or obligee, upon request, timely information on the current status of support order payments; and

(e) One location for employers to send income withholding payments.

(2) The Title IV-D Division shall maintain records of payments for all cases in which support order payments are made to the central office of the State Disbursement Unit using the statewide automated data processing and retrieval system. The Title IV-D Division shall not be required to convert and maintain records of support order payments kept by the clerk of the district court before the date that the State Disbursement Unit becomes operative or records of payments received by the clerk pursuant to section 42-369.

(3) A true copy of the record of payments, balances, and arrearages maintained by the Title IV-D Division is prima facie evidence, without further proof or foundation, of the balance of any amount of support order payments that are in arrears and of all payments made and disbursed to the person or agency to whom the support order payment is to be made. Such evidence shall be considered to be satisfactorily authenticated, shall be admitted as prima facie evidence of the transactions shown in such evidence, and is rebuttable only by a specific evidentiary showing to the contrary.

(4) A copy of support payment records maintained by the Title IV-D Division shall be considered to be a true copy of the record when certified by a person designated by the division pursuant to the rules and regulations adopted and promulgated pursuant to this section.

Source:Laws 2000, LB 972, § 1; Laws 2002, LB 1062, § 3; Laws 2007, LB554, § 44.

43-3342.02. State Disbursement Unit; timely disbursement required.

(1) Except as provided in subsection (2) of this section, the State Disbursement Unit shall disburse all support order payments received within two business days after receipt.

(2) The State Disbursement Unit may delay the disbursement of collections toward arrearages until the resolution of any timely appeal with respect to such arrearages.

Source:Laws 2000, LB 972, § 2.

43-3342.03. State Disbursement Unit; support order collection; fees authorized; State Disbursement Unit Cash Fund; created; use; investment; electronic remittance by employers.

(1) All support orders shall direct payment of support as provided in section 42-369. Any support order issued prior to the date that the State Disbursement Unit becomes operative for which the payment is to be made to the clerk of the district court shall be deemed to require payment to the State Disbursement Unit after a notice to the obligor is issued. Support order payments made to the clerk of the district court shall be forwarded to the State Disbursement Unit by electronic transfer.

(2) The State Disbursement Unit may collect a fee equal to the actual cost of processing any payments for returned check charges or charges for electronic payments not accepted, except that the fee shall not exceed thirty dollars. After a payor has originated one payment resulting in a returned check or an electronic payment not accepted within a period of two years, the unit may issue a notice to the originator that, for the following year, any payment shall be required to be paid by money order, cashier's check, certified check, or any other form of guaranteed payment as may be approved by the unit. After a payor has originated two payments resulting in returned checks or electronic payments not accepted, the unit may issue a notice to the originator that all future payments shall be paid by money order, cashier's check, certified check, or any other form of guaranteed payment as may be approved by the unit, except that pursuant to rule and regulation and at least two years after such issuance of notice, the unit may waive for good cause shown such requirements for methods of payment. The fees shall be remitted to the State Treasurer for credit to the State Disbursement Unit Cash Fund, which is hereby created, which funds shall be used to offset the expenses incurred in the collection of child support bad debt and other collection expenses incurred by the unit. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(3) The State Disbursement Unit shall use automated procedures, electronic processes, and computer-driven technology to the maximum extent feasible, efficient, and economical for the collection and disbursement of support payments.

(4) Employers with more than fifty employees who have an employee with a child support order shall remit child support payments electronically.

Source:Laws 2000, LB 972, § 3; Laws 2002, LB 1062, § 4; Laws 2005, LB 116, § 21; Laws 2008, LB620, § 1; Laws 2019, LB505, § 1.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-3342.04. Title IV-D Division; establish Customer Service Unit; duties; report.

(1) The Title IV-D Division shall establish a Customer Service Unit. In hiring the initial staff for the unit, a hiring preference shall be given to employees of the clerks of the district court. The duties of the Customer Service Unit include, but are not limited to:

(a) Providing account information as well as addressing inquiries made by customers of the State Disbursement Unit; and

(b) Administering two statewide toll-free telephone systems, one for use by employers and one for use by all other customers, to provide responses to inquiries regarding income withholding, the collection and disbursement of support order payments made to the State Disbursement Unit, and other child support enforcement issues, including establishing a call center with sufficient telephone lines, a voice response unit, and adequate personnel available during normal business hours to ensure that responses to inquiries are made by the division's personnel or the division's designee.

(2) The physical location of the Customer Service Unit shall be in Nebraska and shall result in the hiring of a number of new employees or contractor's staff equal to at least one-fourth of one percent of the labor force in the county or counties in which the Customer Service Unit is located. Customer service staff responsible for providing account information related to the State Disbursement Unit may be located at the same location as the State Disbursement Unit.

(3) The department shall issue a report to the Governor and to the Legislature on or before January 31 of each year which discloses information relating to the operation of the State Disbursement Unit for the preceding calendar year including, but not limited to:

(a) The number of transactions processed by the State Disbursement Unit;

(b) The dollar amount collected by the State Disbursement Unit;

(d) The percentage of identifiable collections disbursed within two business days;

(e) The percentage of identifiable collections that are matched to the correct case;

(f) The number and dollar amount of insufficient funds checks received by the State Disbursement Unit;

(g) The number and dollar amount of insufficient funds checks received by the State Disbursement Unit for which restitution is subsequently made to the State Disbursement Unit;

(h) The number of incoming telephone calls processed through the Customer Service Unit;

(i) The average length of incoming calls from employers;

(j) The average length of incoming calls from all other customers;

(k) The percentage of incoming calls resulting in abandonment by the customer;

(l) The percentage of incoming calls resulting in a customer receiving a busy signal;

(m) The average holding time for all incoming calls; and

(n) The percentage of calls handled by employees of the Customer Service Unit that are resolved within twenty-four hours.

(4) The report issued to the Legislature pursuant to subsection (3) of this section shall be issued electronically.

Source:Laws 2000, LB 972, § 4; Laws 2007, LB296, § 169; Laws 2012, LB782, § 50.

43-3342.05. Child Support Advisory Commission; created; members; terms; expenses; personnel; duties; Supreme Court; duties.

(1) The Child Support Advisory Commission is created. Commission members shall include:

(a) Two district court judges whose jurisdiction includes domestic relations, to be appointed by the Supreme Court;

(b) One member of the Nebraska State Bar Association who practices primarily in the area of domestic relations;

(d) One professional who works in the field of economics or mathematics or another field of expertise relevant to child support;

(e) One custodial parent who has a court order to receive child support;

(f) One noncustodial parent who is under a support order to pay child support;

(g) The chairperson of the Judiciary Committee of the Legislature, who shall serve as the chairperson of the commission;

(h) The chairperson of the Health and Human Services Committee of the Legislature;

(i) The State Treasurer or his or her designee;

(j) The State Court Administrator or his or her designee; and

(k) The director of the Title IV-D Division or his or her designee.

(2)(a) The Supreme Court shall notify the Executive Board of the Legislative Council of its intent to review the child support guidelines pursuant to section 42-364.16. Following such notification, the chairperson of the commission shall call a meeting of the commission.

(b) Each time the commission meets pursuant to subdivision (2)(a) of this section, the Supreme Court shall make appointments to fill the membership under subdivision (1)(a) of this section and the chairperson of the Executive Board shall make appointments to fill each membership under subdivisions (1)(b) through (f) of this section. The terms of these members shall expire after the commission has fulfilled its duties pursuant to subsection (3) of this section.

(c) Members shall serve without compensation but shall be reimbursed for expenses incurred in the performance of their duties as provided in sections 81-1174 to 81-1177.

(d) If determined to be necessary to perform the duties of the commission, the commission may hire, contract, or otherwise obtain the services of consultants, researchers, aides, and other necessary support staff with prior approval of the chairperson of the Executive Board.

(e) For administrative purposes, the commission shall be managed and administered by the Legislative Council.

(3) The duties of the commission shall include, but are not limited to:

(a) Reviewing the child support guidelines adopted by the Supreme Court and recommending, if appropriate, any changes to the guidelines. Whenever practicable, the commission shall base its recommendations on economic data and statistics collected in the State of Nebraska. In reviewing the guidelines and formulating recommendations, the commission may conduct public hearings around the state; and

(b) Presenting reports, as deemed necessary, of its activities and recommendations to the Supreme Court and the Executive Board. Any reports submitted to the Executive Board shall be submitted electronically.

(4) The Supreme Court shall review the commission's reports. The Supreme Court may amend the child support guidelines established pursuant to section 42-364.16 based upon the commission's recommendations.

Source:Laws 2000, LB 972, § 5; Laws 2002, LB 1062, § 5; Laws 2006, LB 1113, § 43; Laws 2013, LB222, § 11; Laws 2020, LB381, § 33.

43-3342.06. Restriction on advertising and promotional materials.

Any advertising or promotional materials relating to the State Disbursement Unit may include references to a public office but shall not refer to an officeholder by name.

Source:Laws 2000, LB 972, § 6.

43-3342.07. Repealed. Laws 2004, LB 1005, § 143.

43-3343. Repealed. Laws 2004, LB 1005, § 143.

43-3344. Support order payments; considered abandoned property; when; disposition.

Support order payments placed in the Title IV-D Support Payment Distributive Fund shall be exempt from the Uniform Disposition of Unclaimed Property Act. If, within three years after the date of receipt, the Title IV-D Division is unable to disburse support order payments collected pursuant to law and also unable to return the collected payments to the noncustodial parent, such payments shall be considered abandoned property. This abandoned property shall be used by the state for child support enforcement as provided by the rules and regulations of the division.

Source:Laws 1999, LB 637, § 4; Laws 2000, LB 972, § 30; Laws 2004, LB 1005, § 5.

Cross References

Uniform Disposition of Unclaimed Property Act, see section 69-1329.

43-3345. District courts; compliance required.

For purposes of the establishment, modification, or enforcement of a support order, all district courts shall utilize the Title IV-D Division's statewide automated data processing and information retrieval system. The Title IV-D Division may withhold IV-D funds from any county whose district court is not in compliance with this section.

Source:Laws 1999, LB 637, § 5.

43-3346. Title IV-D Support Payment Distributive Fund; created; use.

The Title IV-D Support Payment Distributive Fund is created. The fund shall be used for the collection and disbursement of support payments as provided in sections 43-3341 to 43-3347.

Source:Laws 1999, LB 637, § 6; Laws 2000, LB 972, § 31; Laws 2004, LB 1005, § 6.

43-3347. Rules and regulations.

The Title IV-D Division shall adopt and promulgate rules and regulations to carry out sections 43-3341 to 43-3347.

Source:Laws 1999, LB 637, § 7; Laws 2000, LB 972, § 32.

43-3401. Early Childhood Interagency Coordinating Council; created; membership; terms; expenses.

The Early Childhood Interagency Coordinating Council is created. The council shall advise and assist the collaborating agencies in carrying out the provisions of the Early Intervention Act, the Quality Child Care Act, sections 79-1101 to 79-1104, and other early childhood care and education initiatives under state supervision. Membership and activities of the council shall comply with all applicable provisions of federal law. Members of the council shall be appointed by the Governor and shall include, but not be limited to:

(1) Parents of children who require early intervention services, early childhood special education, and other early childhood care and education services; and

(2) Representatives of school districts, social services, health and medical services, family child care and center-based early childhood care and education programs, agencies providing training to staff of child care programs, resource and referral agencies, mental health services, developmental disabilities services, educational service units, Head Start, higher education, physicians, the Legislature, business persons, and the collaborating agencies.

Terms of the members shall be for three years, and a member shall not serve more than two consecutive three-year terms. Members shall be reimbursed for expenses as provided in sections 81-1174 to 81-1177, including child care expenses, with funds provided for such purposes through the Early Intervention Act, the Quality Child Care Act, and sections 79-1101 to 79-1104.

Members of the Nebraska Interagency Coordinating Council serving on July 13, 2000, shall constitute the Early Childhood Interagency Coordinating Council and shall serve for the remainder of their terms. The Governor shall make additional appointments as required by this section and to fill vacancies as needed. The Governor shall set the initial terms of additional appointees to result in staggered terms for members of the council. The Department of Health and Human Services and the State Department of Education shall provide and coordinate staff assistance to the council.

Source:Laws 2000, LB 1135, § 6; Laws 2006, LB 994, § 63; Laws 2007, LB296, § 170; Laws 2020, LB381, § 34.

Cross References

Early Intervention Act, see section 43-2501.

Quality Child Care Act, see section 43-2601.

43-3402. Council; advisory duties.

With respect to the Early Intervention Act, the Quality Child Care Act, and sections 79-1101 to 79-1104, the Early Childhood Interagency Coordinating Council shall serve in an advisory capacity to state agencies responsible for early childhood care and education, including care for school-age children, in order to:

(1) Promote the policies set forth in the Early Intervention Act, the Quality Child Care Act, and sections 79-1101 to 79-1104;

(2) Facilitate collaboration with the federally administered Head Start program;

(3) Make recommendations to the Department of Health and Human Services, the State Department of Education, and other state agencies responsible for the regulation or provision of early childhood care and education programs on the needs, priorities, and policies relating to such programs throughout the state;

(4) Make recommendations to the lead agency or agencies which prepare and submit applications for federal funding;

(5) Review new or proposed revisions to rules and regulations governing the registration or licensing of early childhood care and education programs;

(6) Study and recommend additional resources for early childhood care and education programs; and

(7) Report biennially to the Governor and Legislature on the status of early intervention and early childhood care and education in the state. The report submitted to the Legislature shall be submitted electronically. Such report shall include (a) the number of license applications received under section 71-1911, (b) the number of such licenses issued, (c) the number of such license applications denied, (d) the number of complaints investigated regarding such licensees, (e) the number of such licenses revoked, (f) the number and dollar amount of civil penalties levied pursuant to section 71-1920, and (g) information which may assist the Legislature in determining the extent of cooperation provided to the Department of Health and Human Services by other state and local agencies pursuant to section 71-1914.

Source:Laws 2000, LB 1135, § 7; Laws 2006, LB 994, § 64; Laws 2007, LB296, § 171; Laws 2012, LB782, § 51.

Cross References

Early Intervention Act, see section 43-2501.

Quality Child Care Act, see section 43-2601.

43-3403. Council; Early Intervention Act; duties.

With respect to the Early Intervention Act, the Early Childhood Interagency Coordinating Council and collaborating agencies shall make recommendations to the lead agency or agencies relating to:

(1) The general administration, supervision, and monitoring of programs and activities receiving federal funds under the federal early intervention program to ensure compliance with federal law;

(2) The identification and coordination of all available resources within the state from federal, state, local, and private sources;

(3) The development of procedural safeguards, including procedures for complaints and appeals, to ensure that services coordination is provided to eligible infants or toddlers with disabilities or possible disabilities and their families in a timely manner pending the resolution of any disputes among public agencies or service providers;

(4) The entry into formal interagency agreements that include components necessary to ensure meaningful cooperation and coordination; and

(5) The coordination of interagency rules and regulations pursuant to the Early Intervention Act.

Source:Laws 2000, LB 1135, § 8.

Cross References

Early Intervention Act, see section 43-2501.

43-3501. Act, how cited.

Sections 43-3501 to 43-3507 shall be known and may be cited as the Nebraska County Juvenile Services Plan Act.

Source:Laws 2000, LB 1167, § 1.

43-3502. Definitions.

For purposes of the Nebraska County Juvenile Services Plan Act, the definitions shall be the same as those in sections 43-245 and 43-403.

Source:Laws 2000, LB 1167, § 2.

43-3503. Legislative intent; county powers and duties.

(1) It is the intent of the Legislature to encourage counties to develop a continuum of alternatives to detention for the purpose of enhancing, developing, and expanding the availability of such services to juveniles requiring alternatives to detention.

(2) A county may enhance, develop, or expand alternatives to detention as needed with private or public providers. Grants from the Commission Grant Program and aid from the Community-based Juvenile Services Aid Program under the Juvenile Services Act and the federal Juvenile Justice and Delinquency Prevention Act of 1974 may be used to fund alternatives to detention. Each county shall routinely review services provided by contract providers and modify services as needed.

Source:Laws 2000, LB 1167, § 3; Laws 2001, LB 640, § 13; Laws 2013, LB561, § 52; Laws 2016, LB894, § 18.

Cross References

Juvenile Services Act, see section 43-2401.

43-3504. County juvenile services plan; multicounty plan; regional plan.

(1) Each county shall develop a county juvenile services plan by January 1, 2003. Two or more counties may establish a multicounty juvenile services plan. Such plan should include input from individuals comprising a local juvenile justice advisory committee as provided for in subdivision (1) of section 43-3505 or a similar committee or group of individuals. The plan shall be submitted to the Nebraska Commission on Law Enforcement and Criminal Justice and shall include:

(a) Identification of the risk factors for delinquency that exist in the county or counties and service needs;

(b) Identification of juvenile services available within the county or counties, including, but not limited to, programs for assessment and evaluation, the prevention of delinquent behavior, diversion, detention, shelter care, intensive juvenile probation services, restitution, family support services, and community centers for the care and treatment of juveniles in need of services;

(c) Identification of juvenile services within close proximity of the county or counties that may be utilized if community-based programs are not available within the county or counties;

(d) Identification of the programs, services, facilities, and providers the county primarily uses for juvenile detention or alternatives to detention, including the costs associated with the use of such programs, services, facilities, and providers; and

(e) A coordination plan and an enhancement, development, and expansion plan of community services within the county, counties, or region to help prevent delinquency by providing intervention services when behavior that leads to delinquency is first exhibited. Examples of intervention services include, but are not limited to, alternative schools, school truancy programs, volunteer programs, family preservation and counseling, drug and alcohol counseling, diversion programs, and Parents Anonymous.

(2) Following or in conjunction with the development of a county juvenile services plan, each county may develop regional service plans and establish regional juvenile services boards when appropriate. The regional service plan shall be submitted to the Nebraska Commission on Law Enforcement and Criminal Justice.

(3) Plans developed under this section shall be updated no less than every five years after the date the plan is submitted to the commission.

Source:Laws 2000, LB 1167, § 4; Laws 2016, LB894, § 19.

43-3505. County; powers; local juvenile justice advisory committee.

Each county may:

(1) Establish a local juvenile justice advisory committee for the purpose of meeting quarterly to discuss trends and issues related to juvenile offenders and service needs. Such committee should include representation from the courts, law enforcement, community service providers, schools, detention or shelter care, county elected and administrative officials, probation officials, health and human services representatives, and state officials or agency representatives. The committee should discuss state and local policy initiatives, use of detention and other regional services, commitment to state custody, and impacts of policy initiatives and trends on county juvenile justice systems. Notwithstanding any other provision of law regarding the confidentiality of records, information from the various representative agencies can be shared about juveniles under their supervision for the purposes of this subdivision. The information shared shall be in the form of statistical data which does not disclose the identity of any particular individual;

(2) Collect and review data on an ongoing basis to understand the service needs of the juvenile offender population; and

(3) Compile, review, and forward county level data collected pursuant to section 43-3506.

Source:Laws 2000, LB 1167, § 5.

43-3506. County level data on juveniles.

County level data on juveniles shall be maintained and compiled by the Nebraska Commission on Law Enforcement and Criminal Justice on arrest rates; petition rates; detention rates and utilization; offender profile data, such as offense, race, age, and sex; and admissions to staff secure and temporary holdover facilities.

Source:Laws 2000, LB 1167, § 6.

43-3507. Legislative findings.

(1) The Legislature finds that there is a need for additional secure detention and detention services, including transportation services, for juveniles in the state. The need can be met by enhancing and expanding the existing secure detention facilities and detention services as needed in the future and by constructing new juvenile detention facilities to serve the southeastern, central, and west central areas of the state.

(2) The Legislature further finds that in order for probation officers to adequately perform the function of providing juvenile intake services statewide, existing probation staff resources need to be expanded and, additionally, program services that enhance a juvenile's successful reintegration into the community need to readily be available and at the disposal of juvenile probation.

(3) The Legislature further finds that juvenile diversion programs should be available throughout the state as a means of providing consequences without the formal involvement of the courts.

Source:Laws 2000, LB 1167, § 7.

43-3601. Repealed. Laws 2004, LB 940, § 4.

43-3602. Repealed. Laws 2004, LB 940, § 4.

43-3603. Repealed. Laws 2004, LB 940, § 4.

43-3701. Act, how cited.

Sections 43-3701 to 43-3720 shall be known and may be cited as the Court Appointed Special Advocate Act.

Source:Laws 2000, LB 1167, § 24; Laws 2011, LB463, § 18.

43-3702. Definitions, where found.

For purposes of the Court Appointed Special Advocate Act, the definitions in sections 43-3703 to 43-3705 apply.

Source:Laws 2000, LB 1167, § 25.

43-3703. Child, defined.

Child means an individual under nineteen years of age.

Source:Laws 2000, LB 1167, § 26.

43-3704. Court appointed special advocate program, defined.

Court appointed special advocate program means a program established pursuant to the Court Appointed Special Advocate Act.

Source:Laws 2000, LB 1167, § 27.

43-3705. Court appointed special advocate volunteer, defined.

Court appointed special advocate volunteer or volunteer means an individual appointed by a court pursuant to the Court Appointed Special Advocate Act.

Source:Laws 2000, LB 1167, § 28.

43-3706. Court appointed special advocate programs; authorized; requirements.

(1) Court appointed special advocate programs may be established and shall operate pursuant to the Court Appointed Special Advocate Act.

(2) A court appointed special advocate program shall:

(a) Be an organization that screens, trains, and supervises court appointed special advocate volunteers to advocate for the best interests of children when appointed by a court as provided in section 43-3710. Each court may be served by a court appointed special advocate program. One program may serve more than one court;

(b) Hold regular case conferences with volunteers to review case progress and conduct annual performance reviews for all volunteers;

(d) Provide the training required pursuant to section 43-3708.

Source:Laws 2000, LB 1167, § 29.

43-3707. Program director; duties.

The program director of the court appointed special advocate program shall be responsible for the administration of the program, including recruitment, selection, training, supervision, and evaluation of staff and court appointed special advocate volunteers.

Source:Laws 2000, LB 1167, § 30.

43-3708. Volunteers; requirements.

(1) All court appointed special advocate volunteers shall participate fully in preservice training, including, but not limited to, instruction on recognizing child abuse and neglect, cultural awareness, socioeconomic issues, child development, the juvenile court process, permanency planning, volunteer roles and responsibilities, advocacy, information gathering, and documentation. Volunteers shall be required to participate in observation of court proceedings prior to appointment.

(2) All volunteers shall receive a training manual that includes guidelines for service and duties.

(3) Each court appointed special advocate program shall provide a minimum of ten hours of inservice training per year to volunteers.

Source:Laws 2000, LB 1167, § 31.

43-3709. Volunteers; minimum qualifications.

(1) The minimum qualifications for any prospective court appointed special advocate volunteer are that he or she shall:

(a) Be at least twenty-one years of age or older and have demonstrated an interest in children and their welfare;

(b) Be willing to commit to the court for a minimum of one year of service to a child;

(c) Complete an application, including providing background information required pursuant to subsection (2) of this section;

(d) Participate in a screening interview; and

(e) Participate in the training required pursuant to section 43-3708.

(2) As required background screening, the program director shall obtain the following information regarding a volunteer applicant:

(a) A check of the applicant's criminal history record information maintained by the Identification Division of the Federal Bureau of Investigation through the Nebraska State Patrol;

(b) A check of his or her record with the central registry of child protection cases maintained under section 28-718;

(d) At least three references who will attest to the applicant's character, judgment, and suitability for the position of a court appointed special advocate volunteer.

(3) If the applicant has lived in Nebraska for less than twelve months, the program director shall obtain the records required in subdivisions (2)(a) through (2)(c) of this section from all other jurisdictions in which the applicant has lived during the preceding year.

Source:Laws 2000, LB 1167, § 32; Laws 2005, LB 116, § 22; Laws 2014, LB853, § 27.

43-3710. Appointment of volunteer; procedure.

(1) A judge may appoint a court appointed special advocate volunteer in any proceeding brought pursuant to section 43-247 or 43-292 when, in the opinion of the judge, a child who may be affected by such proceeding requires services that a volunteer can provide and the court finds that the appointment is in the best interests of the child.

(2) A volunteer shall be appointed pursuant to a court order. The court order shall specify the volunteer as a friend of the court acting on the authority of the judge. The volunteer acting as a friend of the court may offer as evidence a written report with recommendations consistent with the best interests of the child, subject to all pertinent objections.

(3) A memorandum of understanding between a court and a court appointed special advocate program is required in any county where a program is established and shall set forth the roles and responsibilities of the court appointed special advocate volunteer.

(4) The volunteer's appointment shall conclude:

(a) When the court's jurisdiction over the child terminates;

(b) Upon discharge by the court on its own motion;

(c) With the approval of the court, at the request of the program director of the court appointed special advocate program to which the volunteer is assigned; or

(d) Upon successful motion of a party to the action for the removal of the volunteer because the party believes the volunteer has acted inappropriately, is unqualified, or is unsuitable for the appointment.

Source:Laws 2000, LB 1167, § 33.

43-3711. Volunteer; prohibited acts.

A court appointed special advocate volunteer shall not:

(1) Accept any compensation for the duties and responsibilities of his or her appointment;

(2) Have any association that creates a conflict of interest with his or her duties;

(3) Be related to any party or attorney involved in a case;

(4) Be employed in a position that could result in a conflict of interest or give rise to the appearance of a conflict; or

(5) Use the position to seek or accept gifts or special privileges.

Source:Laws 2000, LB 1167, § 34.

43-3712. Volunteer; duties.

(1) Upon appointment in a proceeding, a court appointed special advocate volunteer shall:

(a) Conduct an independent examination regarding the best interests of the child that will provide factual information to the court regarding the child and the child's family. The examination may include interviews with and observations of the child, interviews with other appropriate individuals, and the review of relevant records and reports; and

(b) Determine if an appropriate permanency plan has been created for the child, whether appropriate services are being provided to the child and the child's family, and whether the treatment plan is progressing in a timely manner.

(2) The volunteer, with the support and supervision of the court appointed special advocate program staff, shall make recommendations consistent with the best interests of the child regarding placement, visitation, and appropriate services for the child and the child's family and shall prepare a written report to be distributed to the court and the parties to the proceeding.

(3) The volunteer shall monitor the case to which he or she has been appointed to assure that the child's essential needs are being met.

(4) The volunteer shall make every effort to attend all hearings, meetings, and any other proceeding concerning the case to which he or she has been appointed.

(5) The volunteer may be called as a witness in a proceeding by any party or the court.

Source:Laws 2000, LB 1167, § 35.

43-3713. Cooperation; notice required.

(1) All government agencies, service providers, professionals, school districts, school personnel, parents, and families shall cooperate with all reasonable requests of the court appointed special advocate volunteer. The volunteer shall cooperate with all government agencies, service providers, professionals, school districts, school personnel, parents, and families.

(2) The volunteer shall be notified in a timely manner of all hearings, meetings, and any other proceeding concerning the case to which he or she has been appointed. The court in its discretion may proceed notwithstanding failure to notify the volunteer or failure of the volunteer to appear.

Source:Laws 2000, LB 1167, § 36; Laws 2009, LB35, § 30.

43-3714. Confidentiality; violation; penalty.

The contents of any document, record, or other information relating to a case to which the court appointed special advocate volunteer has access are confidential, and the volunteer shall not disclose such information to persons other than the court, the parties to the action, and other persons authorized by the court. A violation of this section is a Class III misdemeanor.

Source:Laws 2000, LB 1167, § 37.

43-3715. Attorney-client privilege; applicability.

Nothing in the Court Appointed Special Advocate Act affects the attorney-client privilege.

Source:Laws 2000, LB 1167, § 38.

43-3716. Volunteer; immunity.

A court appointed special advocate volunteer shall be immune from civil liability to the full extent provided in the federal Volunteer Protection Act of 1997.

Source:Laws 2000, LB 1167, § 39.

43-3717. Legislative findings.

The Legislature finds and declares that:

(1) The safety and well-being of abused and neglected children throughout the State of Nebraska should be of paramount concern to the state and its residents;

(2) Court appointed special advocate volunteers provide a unique and vital service to the children they represent and work to ensure the safety and well-being of abused and neglected children;

(3) Court appointed special advocate volunteers have provided, in many cases, the judges who adjudicate cases with essential information that has not only ensured the safety and well-being of abused and neglected children throughout Nebraska, but has also saved the state thousands of dollars; and

(4) Providing resources through a grant program will increase the savings to the state through court appointed special advocate programs.

Source:Laws 2011, LB463, § 14.

43-3718. Court Appointed Special Advocate Fund; created; use; investment.

The Court Appointed Special Advocate Fund is created. The fund shall be under the control of the Supreme Court and administered by the State Court Administrator. The fund shall be used for grants as provided in section 43-3719. The fund shall consist of transfers, grants, donations, gifts, devises, and bequests. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act. Interest earned shall be credited back to the fund.

Source:Laws 2011, LB463, § 15; Laws 2013, LB199, § 18.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

43-3719. Supreme Court; award grants; purposes.

(1) The Supreme Court shall award grants from the Court Appointed Special Advocate Fund as provided in subsection (2) of this section to any court appointed special advocate program that applies for the grant and:

(a) Is a nonprofit organization organized under section 501(c)(3) of the Internal Revenue Code;

(b) Has the ability to operate statewide; and

(2) The Supreme Court shall award grants up to the amount credited to the fund per fiscal year as follows:

(a) Up to ten thousand dollars may be used by the court to administer this section;

(b) Of the remaining amount, eighty percent shall be awarded as grants used to recruit new court appointed special advocate volunteers and to defray the cost of training court appointed special advocate volunteers;

(c) Of the remaining amount, ten percent shall be awarded as grants used to create innovative programming to implement the Court Appointed Special Advocate Act; and

(d) Of the remaining amount, ten percent shall be awarded as grants used to expand court appointed special advocate programs into counties that have no programs or limited programs.

Source:Laws 2011, LB463, § 16; Laws 2013, LB199, § 19.

43-3720. Applicant awarded grant; report; contents; Supreme Court; powers.

(1) Each applicant who is awarded a grant under section 43-3719 shall provide the Supreme Court, Clerk of the Legislature, and Governor prior to December 31 of each year a report regarding the grant detailing:

(a) The number of court appointed special advocate volunteers trained during the previous fiscal year;

(b) The cost of training the court appointed special advocate volunteers trained during the previous fiscal year;

(d) A description of any programs described in subdivision (2)(d) of section 43-3719;

(e) The total number of courts being served by court appointed special advocate programs during the previous fiscal year; and

(f) The total number of children being served by court appointed special advocate volunteers during the previous fiscal year.

The report submitted to the Clerk of the Legislature shall be submitted electronically.

(2) The Supreme Court, as part of any application process required for a grant pursuant to section 43-3719, may require the applicant to report the information required pursuant to subsection (1) of this section.

Source:Laws 2011, LB463, § 17; Laws 2012, LB782, § 52; Laws 2013, LB199, § 20.

43-3801. Purpose of sections.

(1) The purpose of sections 43-3801 to 43-3812 is to protect foreign national minors or minors having multiple nationalities within the State of Nebraska.

(2) The Legislature recognizes that:

(a) Foreign national minors and minors having multiple nationalities are essential to the maintenance of their culture, traditions, and values;

(b) The governments of foreign countries have a duty to care for the interests of their nationals and citizens abroad, particularly foreign national minors and minors having multiple nationalities;

(c) The governments of foreign countries have the right to information and access in all cases involving minors who are children of foreign nationals and minors having multiple nationalities; and

(d) The state should be able to identify foreign national minors and minors having multiple nationalities and their families in order to provide services for them.

Source:Laws 2006, LB 1113, § 1; Laws 2008, LB92, § 1.

43-3802. Terms, defined.

For purposes of sections 43-3801 to 43-3812:

(1) Agency means the agency in a foreign country charged with ensuring the welfare of minors who are nationals of that country or who have multiple nationalities in that country and the United States;

(2) Custodian means the nonparental caretaker of a foreign national minor or minor having multiple nationalities who has been entrusted by the parent of the minor with the day-to-day care of the minor;

(3) Department means the Department of Health and Human Services;

(4) Foreign national minor means an unmarried person who is under the age of eighteen years and was born in a country other than the United States; and

(5) Minor having multiple nationalities means an unmarried person who is under the age of eighteen years and who holds citizenship simultaneously in the United States and one other country.

Source:Laws 2006, LB 1113, § 2; Laws 2008, LB92, § 2.

43-3803. Early identification; department; duties.

The department, in conjunction with the appropriate consulate, shall provide a method of early identification of foreign national minors and minors having multiple nationalities and their families in order to provide services which assure all the protections afforded by all applicable treaties and laws.

Source:Laws 2006, LB 1113, § 3; Laws 2008, LB92, § 3.

43-3804. Ward of department; department; determination required; information provided to minor and parent or custodian; notify consulate; release of information.

(1) When a court makes a minor a ward of the department, the department shall determine whether the minor is a foreign national minor or a minor having multiple nationalities. If such minor is a foreign national minor or a minor having multiple nationalities, the department shall provide such minor and his or her parent or custodian with the following information:

(a) Written information in English and the minor's native language, explaining the juvenile court process and the rights of the minor and his or her parents or custodian; and

(b) The address and telephone number of the nearest consulate serving the minor.

(2) The department shall notify the appropriate consulate in writing within ten working days after (a) the initial date the department takes custody of a foreign national minor or a minor having multiple nationalities or the date the department learns that a minor in its custody is a foreign national minor or a minor having multiple nationalities, whichever occurs first, (b) the parent of a foreign national minor or a minor having multiple nationalities has requested that the consulate be notified, or (c) the department determines that a noncustodial parent of a foreign national minor or a minor having multiple nationalities in its custody resides in the country represented by the consulate.

(3) The department shall provide the consulate with the name and date of birth of the foreign national minor or the minor having multiple nationalities, the name of his or her parent or custodian, and the name and telephone number of the departmental caseworker directly responsible for the case.

(4) If the consulate needs additional specific information regarding the case of the foreign national minor or the minor having multiple nationalities, the consulate may contact the department and the department may release any information not required to be kept confidential under the Nebraska Juvenile Code or other state or federal statutes.

Source:Laws 2006, LB 1113, § 4; Laws 2008, LB92, § 4.

Cross References

Annotations

This section does not create a jurisdictional prerequisite to a juvenile court's exercise of jurisdiction. In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).

The State's failure to comply with the notice requirements of subsection (2) of this section does not result in a denial of due process when a father whose parental rights have been terminated had notice of the proceedings and did not show that he was prejudiced by the lack of notification to the foreign consulate. In re Interest of Antonio O. & Gisela O., 18 Neb. App. 449, 784 N.W.2d 457 (2010).

43-3805. Interview by consular representative.

A consular representative may interview a foreign national minor or minor having multiple nationalities who is a citizen of the country represented by the consulate. The consular representative shall contact the department to arrange for an interview of a foreign national minor or a minor having multiple nationalities.

Source:Laws 2006, LB 1113, § 5; Laws 2008, LB92, § 5.

43-3806. Ward of department; special immigrant juvenile status; documentation.

If a court makes a foreign national minor or a minor having multiple nationalities a ward of the department and the minor has become eligible for special immigrant juvenile status as defined in 8 U.S.C. 1101(a)(27)(J), the consulate will assist the department in obtaining the necessary documentation for completion of the application for special immigrant juvenile status.

Source:Laws 2006, LB 1113, § 6; Laws 2008, LB92, § 6.

43-3807. Minor in custody of department; birth certificate; application.

The department may obtain a birth certificate from the appropriate country for a foreign national minor or a minor having multiple nationalities in the custody of the department. The department may request the assistance of the consulate in obtaining the necessary documentation to complete the application for a birth certificate under this section.

Source:Laws 2006, LB 1113, § 7; Laws 2008, LB92, § 7.

43-3808. Home studies; other steps to ensure minor's welfare; department; duties.

(1) Upon notification to a consulate pursuant to section 43-3804, the department shall request that the consulate obtain through the agency the appropriate home studies of potential families in such country who may be involved in the case and forward the information to the departmental caseworker directly responsible for the case.

(2) When a foreign national minor is placed in his or her country or a minor having multiple nationalities is placed in the country other than the United States in which he or she holds citizenship, the department shall take all steps necessary to obtain the cooperation of the consulate and the agency to ensure the minor's welfare and provide whatever services are needed. The department shall request copies of the monitoring reports prepared by the agency concerning the welfare of the minor.

Source:Laws 2006, LB 1113, § 8; Laws 2008, LB92, § 8.

43-3809. Court appearance; cooperation of consulate.

The department will request the cooperation of the appropriate consulate in order to notify a person who resides in a foreign country and is required to appear in a court in this state regarding the case of a foreign national minor or a minor having multiple nationalities.

Source:Laws 2006, LB 1113, § 9; Laws 2008, LB92, § 9.

43-3810. Coordination of activities; chief executive officer of the department; duties.

The chief executive officer of the department or his or her designee shall meet as necessary with consular officials to discuss, clarify, and coordinate activities, ideas and concerns of a high-profile nature, timely media attention, and joint prevention efforts regarding the protection and well-being of foreign national minors and minors having multiple nationalities and families.

Source:Laws 2006, LB 1113, § 10; Laws 2007, LB296, § 172; Laws 2008, LB92, § 10.

43-3811. Rules and regulations.

The department may adopt and promulgate rules and regulations to carry out sections 43-3801 to 43-3810.

Source:Laws 2006, LB 1113, § 11.

43-3812. Sections; how construed.

Nothing in sections 43-3801 to 43-3811 shall be construed as a waiver of immunities to which a consulate and its consular agents are entitled under international law, the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602 et seq., and international treaties in force between the United States and foreign countries.

Source:Laws 2006, LB 1113, § 12.

43-3901. Act, how cited.

Sections 43-3901 to 43-3912 may be cited as the Uniform Child Abduction Prevention Act.

Source:Laws 2007, LB341, § 1.

43-3902. Definitions.

For purposes of the Uniform Child Abduction Prevention Act:

(1) Abduction means the wrongful removal or wrongful retention of a child;

(2) Child means an unemancipated individual who is less than eighteen years of age;

(4) Child custody proceeding means a proceeding in which legal custody, physical custody, or visitation with respect to a child is at issue. The term includes a proceeding for divorce, dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic violence;

(5) Court means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination;

(6) Petition includes a motion or its equivalent;

(7) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(8) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally recognized Indian tribe or nation;

(9) Travel document means records relating to a travel itinerary, including travel tickets, passes, reservations for transportation, or accommodations. The term does not include a passport or visa;

(10) Wrongful removal means the taking of a child that breaches rights of custody or visitation given or recognized under the law of this state; and

(11) Wrongful retention means the keeping or concealing of a child that breaches rights of custody or visitation given or recognized under the law of this state.

Source:Laws 2007, LB341, § 2.

43-3903. Cooperation and communication among courts.

Sections 43-1235, 43-1236, and 43-1237 apply to cooperation and communications among courts in proceedings under the Uniform Child Abduction Prevention Act.

Source:Laws 2007, LB341, § 3.

43-3904. Actions for abduction prevention measures.

(a) A court on its own motion may order abduction prevention measures in a child custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child.

(b) A party to a child custody determination or another individual or entity having a right under the law of this state or any other state to seek a child custody determination for the child may file a petition seeking abduction prevention measures to protect the child under the Uniform Child Abduction Prevention Act.

(c) A county attorney or the Attorney General may seek a warrant to take physical custody of a child under section 43-3909 or other appropriate prevention measures.

Source:Laws 2007, LB341, § 4.

43-3905. Jurisdiction.

(a) A petition under the Uniform Child Abduction Prevention Act may be filed only in a court that has jurisdiction to make a child custody determination with respect to the child at issue under the Uniform Child Custody Jurisdiction and Enforcement Act.

(b) A court of this state has temporary emergency jurisdiction under section 43-1241 if the court finds a credible risk of abduction.

Source:Laws 2007, LB341, § 5.

Cross References

Uniform Child Custody Jurisdiction and Enforcement Act, see section 43-1226.

43-3906. Contents of petition.

A petition under the Uniform Child Abduction Prevention Act must be verified and include a copy of any existing child custody determination, if available. The petition must specify the risk factors for abduction, including the relevant factors described in section 43-3907. Subject to subsection (e) of section 43-1246, if reasonably ascertainable, the petition must contain:

(1) the name, date of birth, and gender of the child;

(2) the customary address and current physical location of the child;

(3) the identity, customary address, and current physical location of the respondent;

(4) a statement of whether a prior action to prevent abduction or domestic violence has been filed by a party or other individual or entity having custody of the child, and the date, location, and disposition of the action;

(5) a statement of whether a party to the proceeding has been arrested for a crime related to domestic violence, stalking, or child abuse or neglect, and the date, location, and disposition of the case; and

(6) any other information required to be submitted to the court for a child custody determination under section 43-1246.

Source:Laws 2007, LB341, § 6.

43-3907. Factors to determine risk of abduction.

(a) In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:

(1) has previously abducted or attempted to abduct the child;

(2) has threatened to abduct the child;

(3) has recently engaged in activities that may indicate a planned abduction, including:

(A) abandoning employment;

(B) selling a primary residence;

(D) closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities;

(E) applying for a passport or visa or obtaining travel documents for the respondent, a family member, or the child; or

(F) seeking to obtain the child's birth certificate or school or medical records;

(4) has engaged in domestic violence, stalking, or child abuse or neglect;

(5) has refused to follow a child custody determination;

(6) lacks strong familial, financial, emotional, or cultural ties to the state or the United States;

(7) has strong familial, financial, emotional, or cultural ties to another state or country;

(8) is likely to take the child to a country that:

(A) is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;

(B) is a party to the Hague Convention on the Civil Aspects of International Child Abduction but:

(i) the Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;

(ii) is noncompliant according to the most recent compliance report issued by the United States Department of State; or

(iii) lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;

(C) poses a risk that the child's physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;

(D) has laws or practices that would:

(i) enable the respondent, without due cause, to prevent the petitioner from contacting the child;

(ii) restrict the petitioner from freely traveling to or exiting from the country because of the petitioner's gender, nationality, marital status, or religion; or

(iii) restrict the child's ability legally to leave the country after the child reaches the age of majority because of a child's gender, nationality, or religion;

(E) is included by the United States Department of State on a current list of state sponsors of terrorism;

(F) does not have an official United States diplomatic presence in the country; or

(G) is engaged in active military action or war, including a civil war, to which the child may be exposed;

(9) is undergoing a change in immigration or citizenship status that would adversely affect the respondent's ability to remain in the United States legally;

(10) has had an application for United States citizenship denied;

(11) has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a Social Security card, a driver's license, or other government-issued identification card or has made a misrepresentation to the United States government;

(12) has used multiple names to attempt to mislead or defraud;

(13) is likely to disregard a determination by a court of this state to not recognize and enforce a foreign child custody determination pursuant to subsection (d) of section 43-1230; or

(14) has engaged in any other conduct the court considers relevant to the risk of abduction.

(b) In the hearing on a petition under the Uniform Child Abduction Prevention Act, the court shall consider any evidence that the respondent believed in good faith that the respondent's conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.

Source:Laws 2007, LB341, § 7.

43-3908. Provisions and measures to prevent abduction.

(a) If a petition is filed under the Uniform Child Abduction Prevention Act, the court may enter an order that must include:

(1) the basis for the court's exercise of jurisdiction;

(2) the manner in which notice and opportunity to be heard were given to the persons entitled to notice of the proceeding;

(3) a detailed description of each party's custody and visitation rights and residential arrangements for the child;

(4) a provision stating that a violation of the order may subject the party in violation to civil and criminal penalties; and

(5) identification of the child's country of habitual residence at the time of the issuance of the order.

(b) If, at a hearing on a petition under the act or on the court's own motion, the court after reviewing the evidence finds a credible risk of abduction of the child, the court shall enter an abduction prevention order. The order must include the provisions required by subsection (a) of this section, and measures and conditions, including those in subsections (c), (d), and (e) of this section, that are reasonably calculated to prevent abduction of the child, giving due consideration to the custody and visitation rights of the parties. The court shall consider the age of the child, the potential harm to the child from an abduction, the legal and practical difficulties of returning the child to the jurisdiction if abducted, and the reasons for the potential abduction, including evidence of domestic violence, stalking, or child abuse or neglect.

(1) an imposition of travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with the following:

(A) the travel itinerary of the child;

(B) a list of physical addresses and telephone numbers at which the child can be reached at specified times; and

(2) a prohibition of the respondent directly or indirectly:

(A) removing the child from this state, the United States, or another geographic area without permission of the court or the petitioner's written consent;

(B) removing or retaining the child in violation of a child custody determination;

(D) approaching the child at any location other than a site designated for supervised visitation;

(3) a requirement that a party register the order in another state as a prerequisite to allowing the child to travel to that state;

(4) with regard to the child's passport:

(A) a direction that the petitioner place the child's name in the United States Department of State's Child Passport Issuance Alert Program;

(B) a requirement that the respondent surrender to the court or the petitioner's attorney any United States or foreign passport issued in the child's name, including a passport issued in the name of both the parent and the child; and

(5) as a prerequisite to exercising custody or visitation, a requirement that the respondent provide:

(A) to the United States Department of State Office of Children's Issues and the relevant foreign consulate or embassy, an authenticated copy of the order detailing passport and travel restrictions for the child;

(B) to the court:

(i) proof that the respondent has provided the information in subdivision (5)(A) of this section; and

(ii) an acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child;

(C) to the petitioner, proof of registration with the United States Embassy or other United States diplomatic presence in the destination country and with the Central Authority for the Hague Convention on the Civil Aspects of International Child Abduction, if that Convention is in effect between the United States and the destination country, unless one of the parties objects; and

(D) a written waiver under the Privacy Act, 5 U.S.C. section 552a, with respect to any document, application, or other information pertaining to the child authorizing its disclosure to the court and the petitioner; and

(6) upon the petitioner's request, a requirement that the respondent obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in the United States.

(d) In an abduction prevention order, the court may impose conditions on the exercise of custody or visitation that:

(1) limit visitation or require that visitation with the child by the respondent be supervised until the court finds that supervision is no longer necessary and order the respondent to pay the costs of supervision;

(2) require the respondent to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the reasonable expenses of recovery of the child, including reasonable attorney's fees and costs if there is an abduction; and

(3) require the respondent to obtain education on the potentially harmful effects to the child from abduction.

(e) To prevent imminent abduction of a child, a court may:

(1) issue a warrant to take physical custody of the child under section 43-3909 or the law of this state other than the act;

(2) direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child, or enforce a custody determination under the act or the law of this state other than the act; or

(3) grant any other relief allowed under the law of this state other than the act.

(f) The remedies provided in the act are cumulative and do not affect the availability of other remedies to prevent abduction.

Source:Laws 2007, LB341, § 8.

43-3909. Warrant to take physical custody of child.

(a) If a petition under the Uniform Child Abduction Prevention Act contains allegations, and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed, the court may issue an ex parte warrant to take physical custody of the child.

(b) The respondent on a petition under subsection (a) of this section must be afforded an opportunity to be heard at the earliest possible time after the ex parte warrant is executed, but not later than the next judicial day unless a hearing on that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible.

(1) recite the facts upon which a determination of a credible risk of imminent wrongful removal of the child is based;

(2) direct law enforcement officers to take physical custody of the child immediately;

(3) state the date and time for the hearing on the petition; and

(4) provide for the safe interim placement of the child pending further order of the court.

(d) If feasible, before issuing a warrant and before determining the placement of the child after the warrant is executed, the court may order a search of the relevant databases of the National Crime Information Center system and similar state databases to determine if either the petitioner or respondent has a history of domestic violence, stalking, or child abuse or neglect.

(e) The petition and warrant must be served on the respondent when or immediately after the child is taken into physical custody.

(f) A warrant to take physical custody of a child, issued by this state or another state, is enforceable throughout this state. If the court finds that a less intrusive remedy will not be effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances, the court may authorize law enforcement officers to make a forcible entry at any hour.

(g) If the court finds, after a hearing, that a petitioner sought an ex parte warrant under subsection (a) of this section for the purpose of harassment or in bad faith, the court may award the respondent reasonable attorney's fees, costs, and expenses.

(h) The act does not affect the availability of relief allowed under the law of this state other than the act.

Source:Laws 2007, LB341, § 9.

43-3910. Duration of abduction prevention order.

An abduction prevention order remains in effect until the earliest of:

(1) the time stated in the order;

(2) the emancipation of the child;

(3) the child's attaining eighteen years of age; or

(4) the time the order is modified, revoked, vacated, or superseded by a court with jurisdiction under sections 43-1238 to 43-1240.

Source:Laws 2007, LB341, § 10.

43-3911. Uniformity of application and construction.

In applying and construing the Uniform Child Abduction Prevention Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2007, LB341, § 11.

43-3912. Relation to federal Electronic Signatures in Global and National Commerce Act.

The Uniform Child Abduction Prevention Act modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of such act, 15 U.S.C. 7001(c), of such act or authorize electronic delivery of any of the notices described in section 103(b) of such act, 15 U.S.C. 7003(b).

Source:Laws 2007, LB341, § 12.

43-4001. Children's Behavioral Health Task Force; created; members; expenses; chairperson.

(1) The Children's Behavioral Health Task Force is created. The task force shall consist of the following members:

(a) The chairperson of the Health and Human Services Committee of the Legislature or another member of the committee as his or her designee;

(b) The chairperson of the Appropriations Committee of the Legislature or another member of the committee as his or her designee;

(c) Two providers of community-based behavioral health services to children, appointed by the chairperson of the Health and Human Services Committee of the Legislature;

(d) One regional administrator appointed under section 71-808, appointed by the chairperson of the Health and Human Services Committee of the Legislature;

(e) Two representatives of organizations advocating on behalf of consumers of children's behavioral health services and their families, appointed by the chairperson of the Health and Human Services Committee of the Legislature;

(f) One juvenile court judge, appointed by the Chief Justice of the Supreme Court; and

(g) The probation administrator or his or her designee.

(2) Members of the task force shall serve without compensation but shall be reimbursed from the Nebraska Health Care Cash Fund for expenses as provided in sections 81-1174 to 81-1177.

(3) The chairperson of the Health and Human Services Committee of the Legislature or his or her designee shall serve as chairperson of the task force. Administrative and staff support for the task force shall be provided by the Health and Human Services Committee of the Legislature and the Appropriations Committee of the Legislature.

Source:Laws 2007, LB542, § 1; Laws 2008, LB928, § 14; Laws 2009, LB540, § 1; Laws 2020, LB381, § 35.

43-4002. Repealed. Laws 2020, LB1188, § 21.

43-4003. Children's Behavioral Health Task Force; duties.

The Children's Behavioral Health Task Force will oversee implementation of the children's behavioral health plan until June 30, 2010, at which time the task force shall submit to the Governor and the Legislature a recommendation regarding the necessity of continuing the task force.

Source:Laws 2007, LB542, § 3.

43-4101. Nebraska Juvenile Service Delivery Project; established; purpose; evaluation; reimbursement for costs; Department of Health and Human Services; duties.

(1) The Nebraska Juvenile Service Delivery Project shall be established as a pilot program administered by the Office of Probation Administration. The pilot program shall be evaluated by the University of Nebraska Medical Center's College of Public Health. The project may be expanded by the Office of Probation Administration. The purpose of the pilot program is to (a) provide access to services in the community for juveniles placed on probation, (b) prevent unnecessary commitment of juveniles to the Department of Health and Human Services and to the Office of Juvenile Services, (c) eliminate barriers preventing juveniles from receiving needed services, (d) prevent unnecessary penetration of juveniles further into the juvenile justice system, (e) enable the juvenile's needs to be met in the least intrusive and least restrictive manner while maintaining the safety of the juvenile and the community, (f) reduce the duplication of resources within the juvenile justice system through intense coordinated case management and supervision, and (g) use evidence-based practices and responsive case management to improve outcomes for adjudicated juveniles.

(2) On or before July 1, 2013, the Department of Health and Human Services shall apply for reimbursement under Title IV-E of the federal Social Security Act, as amended, for reimbursable costs associated with the Nebraska Juvenile Service Delivery Project. The reimbursed funds received by the department shall be remitted to the State Treasurer for credit to the Probation Program Cash Fund for reimbursement of expenses incurred by the Office of Probation Administration pursuant to the Nebraska Juvenile Service Delivery Project.

Source:Laws 2012, LB985, § 1; Laws 2013, LB269, § 4.

43-4102. Nebraska Juvenile Service Delivery Project; expansion; funding; information-sharing process; established.

(1) It is the intent of the Legislature that the Nebraska Juvenile Service Delivery Project, established as a pilot program under section 43-4101 within the Office of Probation Administration, be expanded statewide in a three-step, phase-in process beginning July 1, 2013, with full implementation by July 1, 2014. The expansion of the project will result in the Office of Probation Administration taking over the duties of the Office of Juvenile Services with respect to its previous functions of community supervision and parole of juvenile law violators and of evaluations for such juveniles. The Office of Juvenile Services shall continue for the purpose of operating the youth rehabilitation and treatment centers and the care and custody of the juveniles placed at such centers. Expansion of the project shall be funded by the transfer of funds from the Department of Health and Human Services and the Office of Juvenile Services used to fully fund community-based services and juvenile parole to the Office of Probation Administration.

(2) There shall be established through the use of technology an information-sharing process to support and enhance the exchange of information between the Department of Health and Human Services, the Office of Probation Administration, and the Nebraska Commission on Law Enforcement and Criminal Justice. It is the intent of the Legislature to appropriate two hundred fifty thousand dollars from the General Fund to the Office of Probation Administration to facilitate the information-sharing process.

(3) Costs incurred on behalf of juveniles under the Nebraska Juvenile Service Delivery Project shall be paid as provided in section 43-290.01.

Source:Laws 2013, LB561, § 55; Laws 2014, LB464, § 32.

43-4201. Legislative findings, declarations, and intent.

(1) The Legislature finds and declares that:

(a) The Health and Human Services Committee of the Legislature documented serious problems with the child welfare system in its 2011 report of the study that was conducted under Legislative Resolution 37, One Hundred Second Legislature, First Session, 2011;

(b) Improving the safety and well-being of Nebraska's children and families is a critical priority which must guide policy decisions in a variety of areas;

(c) To improve the safety and well-being of children and families in Nebraska, the legislative, judicial, and executive branches of government must work together to ensure:

(i) The integration, coordination, and accessibility of all services provided to children and families by the state, whether directly or pursuant to contract;

(ii) Reasonable access to appropriate services statewide and efficiency in service delivery; and

(iii) The availability of accurate and complete data as well as ongoing data analysis to identify important trends and problems as they arise; and

(d) As the primary state agency serving children and families, the Department of Health and Human Services must exemplify leadership, responsiveness, transparency, and efficiency and program managers within the agency must strive cooperatively to ensure that their programs view the needs of children and families comprehensively as a system rather than individually in isolation, including pooling funding when possible and appropriate.

(2) It is the intent of the Legislature in creating the Nebraska Children's Commission to provide for the needs identified in subsection (1) of this section, to provide strategic priorities for research or policy development within the child welfare system and juvenile justice system, and to provide a structure to the commission that maintains the framework of the three branches of government and their respective powers and duties.

Source:Laws 2012, LB821, § 1; Laws 2019, LB600, § 3.

43-4202. Nebraska Children's Commission; created; duties; members; expenses; meetings; staff; consultant.

(1) The Nebraska Children's Commission is created as a high-level leadership body to monitor and evaluate the child welfare and juvenile justice systems. The commission shall provide a permanent forum for collaboration among state, local, community, public, and private stakeholders in child welfare and juvenile justice programs and services.

(2)(a) The Governor shall appoint fifteen voting members. The members appointed pursuant to this subdivision shall represent stakeholders in the child welfare and juvenile justice systems and shall include: (i) A biological parent currently or previously involved in the child welfare system or juvenile justice system; (ii) a young adult previously in foster care; and (iii) a representative of a federally recognized Indian tribe residing within the State of Nebraska and appointed from a list of three nominees submitted by the Commission on Indian Affairs.

(b) The Nebraska Children's Commission shall have the following nonvoting, ex officio members: (i) The chairperson of the Health and Human Services Committee of the Legislature or a committee member designated by the chairperson; (ii) the chairperson of the Judiciary Committee of the Legislature or a committee member designated by the chairperson; (iii) the chairperson of the Appropriations Committee of the Legislature or a committee member designated by the chairperson; (iv) three persons appointed by the State Court Administrator; (v) the executive director of the Foster Care Review Office; (vi) the Director of Children and Family Services of the Division of Children and Family Services of the Department of Health and Human Services or his or her designee; (vii) the Director of Behavioral Health of the Division of Behavioral Health of the Department of Health and Human Services or his or her designee; (viii) the Commissioner of Education or his or her designee; and (ix) the Inspector General of Nebraska Child Welfare.

(3) The nonvoting members may attend commission meetings and participate in the discussions of the commission, provide information to the commission on the policies, programs, and processes within their areas of expertise, and gather information for the commission. The commission may hire staff to carry out the responsibilities of the commission.

(4) For administrative purposes, the offices of the staff of the commission shall be located in the Foster Care Review Office. The commission may hire a consultant with experience in facilitating strategic planning to provide neutral, independent assistance in updating the statewide strategic plan.

(5) The commission, with assistance from the executive director of the Foster Care Review Office, shall employ a policy analyst to provide research and expertise to the commission relating to the child welfare system. The policy analyst shall work in conjunction with the staff of the commission. His or her responsibilities may include, but are not limited to: (a) Monitoring the Nebraska child welfare system and juvenile justice system to provide information to the commission; (b) analyzing child welfare and juvenile justice public policy through research and literature reviews and drafting policy reports when requested; (c) managing or leading projects or tasks and providing resource support to commission members and committees as determined by the chairperson of the commission; (d) serving as liaison among child welfare and juvenile justice stakeholders and the public and responding to information inquiries as required; and (e) other duties as assigned by the commission.

(6) Members of the commission shall be reimbursed for expenses as members of such commission as provided in sections 81-1174 to 81-1177. No member of the commission shall have any private financial interest, profit, or benefit from any work of the commission.

(7) It is the intent of the Legislature to fund the operations of the commission using the Nebraska Health Care Cash Fund for fiscal years 2019-20 and 2020-21.

Source:Laws 2012, LB821, § 2; Laws 2013, LB269, § 5; Laws 2013, LB530, § 5; Laws 2015, LB87, § 1; Laws 2016, LB746, § 24; Laws 2019, LB600, § 4; Laws 2020, LB381, § 36.

43-4203. Nebraska Children's Commission; duties; committees created; jurisdiction over committees; establish networks; organize subcommittees; conflict of interest.

(1) The Nebraska Children's Commission shall create a committee to examine the Office of Juvenile Services and the Juvenile Services Division of the Office of Probation Administration. Such committee shall review the role and effectiveness of out-of-home placements utilized in the juvenile justice system, including the youth rehabilitation and treatment centers, and make recommendations to the commission on the juvenile justice continuum of care, including what populations should be served in out-of-home placements and what treatment services should be provided at the centers in order to appropriately serve those populations. Such committee shall also review how mental and behavioral health services are provided to juveniles in residential placements and the need for such services throughout Nebraska and make recommendations to the commission relating to those systems of care in the juvenile justice system. The committee shall collaborate with the Juvenile Justice Institute at the University of Nebraska at Omaha, the Center for Health Policy at the University of Nebraska Medical Center, the behavioral health regions as established in section 71-807, and state and national juvenile justice experts to develop recommendations. The recommendations shall include a plan to implement a continuum of care in the juvenile justice system to meet the needs of Nebraska families, including specific recommendations for the rehabilitation and treatment model. The recommendations shall be delivered to the commission and electronically to the Judiciary Committee of the Legislature annually by September 1.

(2) The commission shall collaborate with juvenile justice specialists of the Office of Probation Administration and county officials with respect to any county-operated practice model participating in the Crossover Youth Program of the Center for Juvenile Justice Reform at Georgetown University.

(3) The commission shall analyze case management workforce issues and make recommendations to the Health and Human Services Committee of the Legislature regarding:

(a) Salary comparisons with other states and the current pay structure based on job descriptions;

(b) Utilization of incentives for persons who work in the area of child welfare;

(d) Collaboration with the University of Nebraska to increase and sustain such workforce.

(4) The Foster Care Reimbursement Rate Committee created pursuant to section 43-4216, the Nebraska Strengthening Families Act Committee created pursuant to section 43-4716, and the Bridge to Independence Advisory Committee created pursuant to section 43-4513 shall be under the jurisdiction of the commission.

(5) The commission shall work with the office of the State Court Administrator, as appropriate, and entities which coordinate facilitated conferencing as described in section 43-247.03.

(6) The commission shall work with administrators from each of the service areas designated pursuant to section 81-3116, the teams created pursuant to section 28-728, local foster care review boards, child advocacy centers, the teams created pursuant to the Supreme Court's Through the Eyes of the Child Initiative, community stakeholders, and advocates for child welfare programs and services to establish networks in each of such service areas. Such networks shall permit collaboration to strengthen the continuum of services available to child welfare agencies and to provide resources for children and juveniles outside the child protection system.

(7) The commission may organize subcommittees as it deems necessary. Members of the subcommittees may be members of the commission or may be individuals who have knowledge of the subcommittee's subject matter, professional expertise to assist the subcommittee in completing its assigned responsibilities, or the ability to collaborate within the subcommittee and with the commission to carry out the powers and duties of the commission. A subcommittee shall meet as necessary to complete the work delegated by the commission and shall report its findings to the relevant committee within the commission.

(8) No member of any committee or subcommittee created pursuant to this section shall have any private financial interest, profit, or benefit from any work of such committee or subcommittee.

Source:Laws 2012, LB821, § 3; Laws 2013, LB269, § 6; Laws 2013, LB530, § 6; Laws 2013, LB561, § 56; Laws 2014, LB464, § 33; Laws 2016, LB746, § 25; Laws 2018, LB732, § 1; Laws 2019, LB600, § 5; Laws 2020, LB1061, § 8.

43-4204. Strategic child welfare priorities for research or policy development.

The Nebraska Children's Commission shall determine three to five strategic child welfare priorities for research or policy development for each biennium to carry out the legislative intent stated in section 43-4201 for child welfare program and service reform in Nebraska. In determining the strategic child welfare priorities, the commission shall consider the findings and recommendations set forth in the annual report of the Foster Care Review Board, the annual report of the Office of Inspector General for Child Welfare, and the federal Child and Family Services Reviews outcomes.

Source:Laws 2012, LB821, § 4; Laws 2019, LB600, § 6.

43-4205. Repealed. Laws 2019, LB600, § 23.

43-4206. Department of Health and Human Services; Office of Probation Administration; cooperate with Nebraska Children's Commission.

The Department of Health and Human Services and the Office of Probation Administration shall fully cooperate with the Nebraska Children's Commission. The department shall provide to the commission all requested information on children and juveniles in Nebraska, including, but not limited to, departmental reports, data, programs, processes, finances, and policies.

Source:Laws 2012, LB821, § 6; Laws 2019, LB600, § 7.

43-4207. Nebraska Children's Commission; report; hearing.

The Nebraska Children's Commission shall annually provide a written report to the Governor and an electronic report to the Health and Human Services Committee of the Legislature defining its strategic child welfare priorities and progress toward addressing such priorities, summarizing reports from each committee and subcommittee of the commission, and making recommendations on or before September 1 of each year. The commission shall present a summary of such report in an annual public hearing before the Health and Human Services Committee of the Legislature on or before December 1 of each year.

Source:Laws 2012, LB821, § 7; Laws 2015, LB87, § 2; Laws 2018, LB732, § 2; Laws 2019, LB600, § 8.

43-4208. Repealed. Laws 2019, LB600, § 23.

43-4209. Repealed. Laws 2019, LB600, § 23.

43-4210. Repealed. Laws 2019, LB600, § 23.

43-4211. Repealed. Laws 2019, LB600, § 23.

43-4212. Repealed. Laws 2013, LB 530, § 9.

43-4213. Repealed. Laws 2019, LB600, § 23.

43-4214. Repealed. Laws 2019, LB600, § 23.

43-4215. Reimbursement rate recommendations; legislative findings and intent; Division of Children and Family Services of Department of Health and Human Services; implementation; pilot project; reports; contents.

(1) On or before July 1, 2014, the Division of Children and Family Services of the Department of Health and Human Services shall implement the reimbursement rate recommendations of the Foster Care Reimbursement Rate Committee as reported to the Legislature pursuant to section 43-4212 as such section existed before June 5, 2013.

(2) It is the intent of the Legislature to create additional levels of caregiving for youth in foster care and to create an implementation plan for treatment family care services in order to expand the service array for high-acuity youth in the foster care system.

(3) The Legislature finds that (a) there is a need for consistency in the implementation of additional tiers of caregiving across the state, (b) additional tiers of caregiving and reimbursement exist in the continuum of foster care services available in Nebraska, however, there is a variation in the rates, implementation and outcomes, (c) the use of rates outside of the established rate structure can create barriers to permanency for children entering adoption and guardianship and prohibits the state from accessing federal foster care funds that would otherwise be available under Title IV-E of the federal Social Security Act, and (d) additional tiers of caregiving should be utilized to support the exceptional caregiving needs of children.

(4) The Legislature further finds that (a) additional treatment services are needed to support the behavioral and mental health needs of youth who are at risk of entering, or who are stepping down from, congregate treatment placement, and (b) treatment family care services uses blended funding to support caregivers and prevent placement disruption.

(5) On or before October 1, 2022, the Division of Children and Family Services of the Department of Health and Human Services shall, in collaboration with the Foster Care Reimbursement Rate Committee, implement additional statewide tiers of foster care reimbursements for specialized caregiving with standardized rates for foster parents and child placing agencies.

(6)(a) On or before July 1, 2013, the Division of Children and Family Services of the Department of Health and Human Services shall develop a pilot project as provided in this subsection to implement the standardized level of care assessment tools recommended by the Foster Care Reimbursement Rate Committee as reported to the Legislature pursuant to section 43-4212 as such section existed before June 5, 2013.

(b)(i) The pilot project shall comprise two groups: One in an urban area and one in a rural area. The size of each group shall be determined by the division to ensure an accurate estimate of the effectiveness and cost of implementing such tools statewide.

(ii) The Nebraska Children's Commission shall review and provide a progress report on the pilot project by October 1, 2013, to the department and electronically to the Health and Human Services Committee of the Legislature; shall provide to the department and electronically to the committee by December 1, 2013, a report including recommendations and any legislation necessary, including appropriations, to adopt the recommendations, regarding the adaptation or continuation of the implementation of a statewide standardized level of care assessment; and shall provide to the department and electronically to the committee by February 1, 2014, a final report and final recommendations of the commission.

Source:Laws 2013, LB530, § 2; Laws 2022, LB1173, § 10.

43-4216. Foster Care Reimbursement Rate Committee; created; members; terms; vacancies.

(1) The Foster Care Reimbursement Rate Committee is created. The committee shall be convened at least once every four years.

(2) The Foster Care Reimbursement Rate Committee shall consist of no fewer than nine members, including:

(a) The following voting members: (i) Representatives from a child welfare agency that contracts directly with foster parents, from each of the service areas designated pursuant to section 81-3116; (ii) a representative from an advocacy organization which deals with legal and policy issues that include child welfare; (iii) a representative from an advocacy organization, the singular focus of which is issues impacting children; (iv) a representative from a foster and adoptive parent association; (v) a representative from a lead agency; (vi) a representative from a child advocacy organization that supports young adults who were in foster care as children; (vii) a foster parent who contracts directly with the Department of Health and Human Services; and (viii) a foster parent who contracts with a child welfare agency; and

(b) The following nonvoting, ex officio members: (i) The chief executive officer of the Department of Health and Human Services or his or her designee and (ii) representatives from the Division of Children and Family Services of the department from each service area designated pursuant to section 81-3116, including at least one division employee with a thorough understanding of the current foster care payment system and at least one division employee with a thorough understanding of the N-FOCUS electronic data collection system. The nonvoting, ex officio members of the committee may attend committee meetings and participate in discussions of the committee and shall gather and provide information to the committee on the policies, programs, and processes of each of their respective bodies. The nonvoting, ex officio members shall not vote on decisions or recommendations by the committee.

(3) Members of the committee shall serve for terms of four years and until their successors are appointed and qualified. The Nebraska Children's Commission shall appoint the members of the committee and the chairperson of the committee and may fill vacancies on the committee as they occur.

Source:Laws 2013, LB530, § 3; Laws 2019, LB600, § 9.

43-4217. Foster Care Reimbursement Rate Committee; duties; reports.

(1) The Foster Care Reimbursement Rate Committee created in section 43-4216 shall review and make recommendations in the following areas: Foster care reimbursement rates, the statewide standardized level of care assessment, and adoption assistance payments as required by section 43-117. In making recommendations to the Legislature, the committee shall use the then-current foster care reimbursement rates as the beginning standard for setting reimbursement rates. The committee shall adjust the standard to reflect the reasonable cost of achieving measurable outcomes for all children in foster care in Nebraska. The committee shall (a) analyze then-current consumer expenditure data reflecting the costs of caring for a child in Nebraska, (b) identify and account for additional costs specific to children in foster care, and (c) apply a geographic cost-of-living adjustment for Nebraska. The reimbursement rate structure shall comply with funding requirements related to Title IV-E of the federal Social Security Act, as amended, and other federal programs as appropriate to maximize the utilization of federal funds to support foster care.

(2) The committee shall review the role and effectiveness of and make recommendations on the statewide standardized level of care assessment containing standardized criteria to determine a foster child's placement needs and to identify the appropriate foster care reimbursement rate. The committee shall review other states' assessment models and foster care reimbursement rate structures in completing the statewide standardized level of care assessment review and the standard statewide foster care reimbursement rate structure. The committee shall ensure the statewide standardized level of care assessment and the standard statewide foster care reimbursement rate structure provide incentives to tie performance in achieving the goals of safety, maintaining family connection, permanency, stability, and well-being to reimbursements received. The committee shall review and make recommendations on assistance payments to adoptive parents as required by section 43-117. The committee shall make recommendations to ensure that changes in foster care reimbursement rates do not become a disincentive to permanency.

(3) The Foster Care Reimbursement Rate Committee shall provide electronic reports with its recommendation to the Health and Human Services Committee of the Legislature on July 1, 2016, and every four years thereafter.

Source:Laws 2013, LB530, § 4; Laws 2019, LB600, § 10.

43-4218. Transferred to section 43-4716.

43-4219. Foster care reimbursement rates; increases; legislative intent.

It is the intent of the Legislature that beginning July 1, 2021, the Division of Children and Family Services of the Department of Health and Human Services shall implement a two-percent increase to foster care reimbursement rates for fiscal year 2021-22 and beginning July 1, 2022, the division shall implement a two-percent increase to foster care reimbursement rates for fiscal year 2022-23.

Source:Laws 2021, LB100, § 3.

43-4301. Act, how cited.

Sections 43-4301 to 43-4332 shall be known and may be cited as the Office of Inspector General of Nebraska Child Welfare Act.

Source:Laws 2012, LB821, § 8; Laws 2015, LB347, § 4; Laws 2017, LB207, § 1.

43-4302. Legislative intent.

(1) It is the intent of the Legislature to:

(a) Establish a full-time program of investigation and performance review to provide increased accountability and oversight of the Nebraska child welfare system;

(b) Assist in improving operations of the Nebraska child welfare system;

(c) Provide an independent form of inquiry for concerns regarding the actions of individuals and agencies responsible for the care and protection of children and youth in the Nebraska child welfare system. Confusion of the roles, responsibilities, and accountability structures between individuals, private contractors, branches of government, and agencies in the current system make it difficult to monitor and oversee the Nebraska child welfare system; and

(d) Provide a process for investigation and review to determine if individual complaints and issues of investigation and inquiry reveal a problem in the child welfare system, not just individual cases, that necessitates legislative action for improved policies and restructuring of the child welfare system.

(2) It is not the intent of the Legislature in enacting the Office of Inspector General of Nebraska Child Welfare Act to interfere with the duties of the Legislative Auditor or the Legislative Fiscal Analyst or to interfere with the statutorily defined investigative responsibilities or prerogatives of any officer, agency, board, bureau, commission, association, society, or institution of the executive branch of state government, except that the act does not preclude an inquiry on the sole basis that another agency has the same responsibility. The act shall not be construed to interfere with or supplant the responsibilities or prerogatives of the Governor to investigate, monitor, and report on the activities of the agencies, boards, bureaus, commissions, associations, societies, and institutions of the executive branch under his or her administrative direction.

Source:Laws 2012, LB821, § 9; Laws 2013, LB39, § 1; Laws 2015, LB347, § 5.

43-4303. Definitions; where found.

For purposes of the Office of Inspector General of Nebraska Child Welfare Act, the definitions found in sections 43-4304 to 43-4316 apply.

Source:Laws 2012, LB821, § 10; Laws 2015, LB347, § 6.

43-4304. Administrator, defined.

Administrator means a person charged with administration of a program, an office, or a division of the department or administration of a private agency or licensed child care facility, the probation administrator, or the executive director.

Source:Laws 2012, LB821, § 11; Laws 2015, LB347, § 7.

43-4304.01. Child welfare system, defined.

Child welfare system means public and private agencies and parties that provide or effect services or supervision to system-involved children and their families.

Source:Laws 2015, LB347, § 8.

43-4304.02. Commission, defined.

Commission means the Nebraska Commission on Law Enforcement and Criminal Justice.

Source:Laws 2015, LB347, § 9.

43-4305. Department, defined.

Department means the Department of Health and Human Services.

Source:Laws 2012, LB821, § 12.

43-4306. Director, defined.

Director means the chief executive officer of the department.

Source:Laws 2012, LB821, § 13.

43-4306.01. Executive director, defined.

Executive director means the executive director of the commission.

Source:Laws 2015, LB347, § 10.

43-4307. Inspector General, defined.

Inspector General means the Inspector General of Nebraska Child Welfare appointed under section 43-4317.

Source:Laws 2012, LB821, § 14.

43-4307.01. Juvenile services division, defined.

Juvenile services division means the Juvenile Services Division of the Office of Probation Administration.

Source:Laws 2015, LB347, § 11.

43-4308. Licensed child care facility, defined.

Licensed child care facility means a facility or program licensed under the Child Care Licensing Act, the Children's Residential Facilities and Placing Licensure Act, or sections 71-1901 to 71-1906.01.

Source:Laws 2012, LB821, § 15; Laws 2013, LB265, § 36.

Cross References

Child Care Licensing Act, see section 71-1908.

Children's Residential Facilities and Placing Licensure Act, see section 71-1924.

43-4309. Malfeasance, defined.

Malfeasance means a wrongful act that the actor has no legal right to do or any wrongful conduct that affects, interrupts, or interferes with performance of an official duty.

Source:Laws 2012, LB821, § 16.

43-4310. Management, defined.

Management means supervision of subordinate employees.

Source:Laws 2012, LB821, § 17.

43-4311. Misfeasance, defined.

Misfeasance means the improper performance of some act that a person may lawfully do.

Source:Laws 2012, LB821, § 18.

43-4312. Obstruction, defined.

Obstruction means hindering an investigation, preventing an investigation from progressing, stopping or delaying the progress of an investigation, or making the progress of an investigation difficult or slow.

Source:Laws 2012, LB821, § 19.

43-4313. Office, defined.

Office means the office of Inspector General of Nebraska Child Welfare and includes the Inspector General and other employees of the office.

Source:Laws 2012, LB821, § 20.

43-4314. Private agency, defined.

Private agency means a child welfare agency that contracts with the department or the Office of Probation Administration or contracts to provide services to another child welfare agency that contracts with the department or the Office of Probation Administration.

Source:Laws 2012, LB821, § 21; Laws 2013, LB561, § 57.

43-4315. Record, defined.

Record means any recording, in written, audio, electronic transmission, or computer storage form, including, but not limited to, a draft, memorandum, note, report, computer printout, notation, or message, and includes, but is not limited to, medical records, mental health records, case files, clinical records, financial records, and administrative records.

Source:Laws 2012, LB821, § 22.

43-4316. Responsible individual, defined.

Responsible individual means a foster parent, a relative provider of foster care, or an employee of the department, the juvenile services division, the commission, a foster home, a private agency, a licensed child care facility, or another provider of child welfare programs and services responsible for the care or custody of records, documents, and files.

Source:Laws 2012, LB821, § 23; Laws 2015, LB347, § 12.

43-4317. Office of Inspector General of Nebraska Child Welfare; created; purpose; Inspector General; appointment; term; certification; employees; removal.

(1) The office of Inspector General of Nebraska Child Welfare is created within the office of Public Counsel for the purpose of conducting investigations, audits, inspections, and other reviews of the Nebraska child welfare system. The Inspector General shall be appointed by the Public Counsel with approval from the chairperson of the Executive Board of the Legislative Council and the chairperson of the Health and Human Services Committee of the Legislature.

(2) The Inspector General shall be appointed for a term of five years and may be reappointed. The Inspector General shall be selected without regard to political affiliation and on the basis of integrity, capability for strong leadership, and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, investigation, or criminal justice administration or other closely related fields. No former or current executive or manager of the department may be appointed Inspector General within five years after such former or current executive's or manager's period of service with the department. Not later than two years after the date of appointment, the Inspector General shall obtain certification as a Certified Inspector General by the Association of Inspectors General, its successor, or another nationally recognized organization that provides and sponsors educational programs and establishes professional qualifications, certifications, and licensing for inspectors general. During his or her employment, the Inspector General shall not be actively involved in partisan affairs.

(3) The Inspector General shall employ such investigators and support staff as he or she deems necessary to carry out the duties of the office within the amount available by appropriation through the office of Public Counsel for the office of Inspector General of Nebraska Child Welfare. The Inspector General shall be subject to the control and supervision of the Public Counsel, except that removal of the Inspector General shall require approval of the chairperson of the Executive Board of the Legislative Council and the chairperson of the Health and Human Services Committee of the Legislature.

Source:Laws 2012, LB821, § 24.

43-4318. Office; duties; reports of death, serious injury, or allegations of sexual abuse; when required; reports of occurrences at youth rehabilitation and treatment center; state agencies, law enforcement agencies, and prosecuting attorneys; cooperation; confidentiality.

(1) The office shall investigate:

(a) Allegations or incidents of possible misconduct, misfeasance, malfeasance, or violations of statutes or of rules or regulations of:

(i) The department by an employee of or person under contract with the department, a private agency, a licensed child care facility, a foster parent, or any other provider of child welfare services or which may provide a basis for discipline pursuant to the Uniform Credentialing Act;

(ii) Subject to subsection (5) of this section, the juvenile services division by an employee of or person under contract with the juvenile services division, a private agency, a licensed facility, a foster parent, or any other provider of juvenile justice services;

(iii) The commission by an employee of or person under contract with the commission related to programs and services supported by the Nebraska County Juvenile Services Plan Act, the Community-based Juvenile Services Aid Program, juvenile pretrial diversion programs, or inspections of juvenile facilities; and

(iv) A juvenile detention facility and staff secure juvenile facility by an employee of or person under contract with such facilities;

(b) Death or serious injury in foster homes, private agencies, child care facilities, juvenile detention facilities, staff secure juvenile facilities, and other programs and facilities licensed by or under contract with the department or the juvenile services division when the office, upon review, determines the death or serious injury did not occur by chance; and

(c) Death or serious injury in any case in which services are provided by the department or the juvenile services division to a child or his or her parents or any case involving an investigation under the Child Protection and Family Safety Act, which case has been open for one year or less and upon review determines the death or serious injury did not occur by chance.

(2) The department, the juvenile services division, each juvenile detention facility, and each staff secure juvenile facility shall report to the office (a) all cases of death or serious injury of a child in a foster home, private agency, child care facility or program, or other program or facility licensed by the department or inspected through the commission to the Inspector General as soon as reasonably possible after the department or the Office of Probation Administration learns of such death or serious injury and (b) all allegations of sexual abuse of a state ward, juvenile on probation, juvenile in a detention facility, and juvenile in a residential child-caring agency. For purposes of this subsection, serious injury means an injury or illness caused by suspected abuse, neglect, or maltreatment which leaves a child in critical or serious condition.

(3)(a) The Office of Juvenile Services shall report to the office of Inspector General of Nebraska Child Welfare as soon as reasonably possible after any of the following instances occur at a youth rehabilitation and treatment center:

(i) An assault;

(ii) An escape or elopement;

(iii) An attempted suicide;

(iv) Self-harm by a juvenile;

(v) Property damage not caused by normal wear and tear;

(vi) The use of mechanical restraints on a juvenile;

(vii) A significant medical event suffered by a juvenile; and

(viii) Internally substantiated violations of 34 U.S.C. 30301 et seq.

(b) The Office of Juvenile Services and the office of Inspector General of Nebraska Child Welfare shall, if requested by either party, work in collaboration to clarify the specific parameters to comply with subdivision (3)(a) of this section.

(4) The department shall notify the office of Inspector General of Nebraska Child Welfare of any leadership changes within the Office of Juvenile Services and the youth rehabilitation and treatment centers.

(5) With respect to any investigation conducted by the Inspector General pursuant to subdivision (1)(a) of this section that involves possible misconduct by an employee of the juvenile services division, the Inspector General shall immediately notify the probation administrator and provide the information pertaining to potential personnel matters to the Office of Probation Administration.

(6) Any investigation conducted by the Inspector General shall be independent of and separate from an investigation pursuant to the Child Protection and Family Safety Act. The Inspector General and his or her staff are subject to the reporting requirements of the Child Protection and Family Safety Act.

(7) Notwithstanding the fact that a criminal investigation, a criminal prosecution, or both are in progress, all law enforcement agencies and prosecuting attorneys shall cooperate with any investigation conducted by the Inspector General and shall, immediately upon request by the Inspector General, provide the Inspector General with copies of all law enforcement reports which are relevant to the Inspector General's investigation. All law enforcement reports which have been provided to the Inspector General pursuant to this section are not public records for purposes of sections 84-712 to 84-712.09 and shall not be subject to discovery by any other person or entity. Except to the extent that disclosure of information is otherwise provided for in the Office of Inspector General of Nebraska Child Welfare Act, the Inspector General shall maintain the confidentiality of all law enforcement reports received pursuant to its request under this section. Law enforcement agencies and prosecuting attorneys shall, when requested by the Inspector General, collaborate with the Inspector General regarding all other information relevant to the Inspector General's investigation. If the Inspector General in conjunction with the Public Counsel determines it appropriate, the Inspector General may, when requested to do so by a law enforcement agency or prosecuting attorney, suspend an investigation by the office until a criminal investigation or prosecution is completed or has proceeded to a point that, in the judgment of the Inspector General, reinstatement of the Inspector General's investigation will not impede or infringe upon the criminal investigation or prosecution. Under no circumstance shall the Inspector General interview any minor who has already been interviewed by a law enforcement agency, personnel of the Division of Children and Family Services of the department, or staff of a child advocacy center in connection with a relevant ongoing investigation of a law enforcement agency.

Source:Laws 2012, LB821, § 25; Laws 2013, LB561, § 58; Laws 2014, LB853, § 28; Laws 2015, LB347, § 13; Laws 2016, LB954, § 3; Laws 2017, LB207, § 2; Laws 2018, LB1078, § 4; Laws 2020, LB1144, § 1.

Cross References

Child Protection and Family Safety Act, see section 28-710.

Nebraska County Juvenile Services Plan Act, see section 43-3501.

Uniform Credentialing Act, see section 38-101.

43-4319. Office; access to information and personnel; investigation; procedure.

(1) The office shall have access to all information and personnel necessary to perform the duties of the office.

(2) A full investigation conducted by the office shall consist of retrieval of relevant records through subpoena, request, or voluntary production, review of all relevant records, and interviews of all relevant persons.

(3) For a request for confidential record information pursuant to subsection (5) of section 43-2,108 involving death or serious injury, the office may submit a written request to the probation administrator. The record information shall be provided to the office within five days.

Source:Laws 2012, LB821, § 26; Laws 2015, LB347, § 14; Laws 2016, LB954, § 4.

43-4320. Complaints to office; form; full investigation; when; notice.

(1) Complaints to the office may be made in writing. The office shall also maintain a toll-free telephone line for complaints. A complaint shall be evaluated to determine if it alleges possible misconduct, misfeasance, malfeasance, or violation of a statute or of rules and regulations pursuant to section 43-4318. All complaints shall be evaluated to determine whether a full investigation is warranted.

(2) The office shall not conduct a full investigation of a complaint unless:

(a) The complaint alleges misconduct, misfeasance, malfeasance, or violation of a statute or of rules and regulations pursuant to section 43-4318;

(b) The complaint is against a person within the jurisdiction of the office; and

(3) The Inspector General shall determine within fourteen days after receipt of a complaint whether it will conduct a full investigation. A complaint alleging facts which, if verified, would provide a basis for discipline under the Uniform Credentialing Act shall be referred to the appropriate credentialing board under the act.

(4) When a full investigation is opened on a private agency that contracts with the Office of Probation Administration, the Inspector General shall give notice of such investigation to the Office of Probation Administration.

Source:Laws 2012, LB821, § 27; Laws 2013, LB561, § 59; Laws 2015, LB347, § 15.

Cross References

Uniform Credentialing Act, see section 38-101.

43-4321. Cooperation with office; when required.

All employees of the department, the juvenile services division as directed by the juvenile court or the Office of Probation Administration, or the commission, all foster parents, and all owners, operators, managers, supervisors, and employees of private agencies, licensed child care facilities, juvenile detention facilities, staff secure juvenile facilities, and other providers of child welfare services or juvenile justice services shall cooperate with the office. Cooperation includes, but is not limited to, the following:

(1) Provision of full access to and production of records and information. Providing access to and producing records and information for the office is not a violation of confidentiality provisions under any law, statute, rule, or regulation if done in good faith for purposes of an investigation under the Office of Inspector General of Nebraska Child Welfare Act;

(2) Fair and honest disclosure of records and information reasonably requested by the office in the course of an investigation under the act;

(3) Encouraging employees to fully comply with reasonable requests of the office in the course of an investigation under the act;

(4) Prohibition of retaliation by owners, operators, or managers against employees for providing records or information or filing or otherwise making a complaint to the office;

(5) Not requiring employees to gain supervisory approval prior to filing a complaint with or providing records or information to the office;

(6) Provision of complete and truthful answers to questions posed by the office in the course of an investigation; and

(7) Not willfully interfering with or obstructing the investigation.

Source:Laws 2012, LB821, § 28; Laws 2013, LB561, § 60; Laws 2015, LB347, § 16; Laws 2016, LB954, § 5.

43-4322. Failure to cooperate; effect.

Failure to cooperate with an investigation by the office may result in discipline or other sanctions.

Source:Laws 2012, LB821, § 29.

43-4323. Inspector General; powers; rights of person required to provide information.

The Inspector General may issue a subpoena, enforceable by action in an appropriate court, to compel any person to appear, give sworn testimony, or produce documentary or other evidence deemed relevant to a matter under his or her inquiry. A person thus required to provide information shall be paid the same fees and travel allowances and shall be accorded the same privileges and immunities as are extended to witnesses in the district courts of this state and shall also be entitled to have counsel present while being questioned. Any fees associated with counsel present under this section shall not be the responsibility of the office of Inspector General of Nebraska Child Welfare.

Source:Laws 2012, LB821, § 30; Laws 2017, LB207, § 3.

43-4324. Office; access to records; subpoena; records; statement of record integrity and security; contents; treatment of records.

(1) In conducting investigations, the office shall access all relevant records through subpoena, compliance with a request of the office, and voluntary production. The office may request or subpoena any record necessary for the investigation from the department, the juvenile services division as permitted by law, the commission, a foster parent, a licensed child care facility, a juvenile detention facility, a staff secure juvenile facility, or a private agency that is pertinent to an investigation. All case files, licensing files, medical records, financial and administrative records, and records required to be maintained pursuant to applicable licensing rules shall be produced for review by the office in the course of an investigation.

(2) Compliance with a request of the office includes:

(a) Production of all records requested;

(b) A diligent search to ensure that all appropriate records are included; and

(c) A continuing obligation to immediately forward to the office any relevant records received, located, or generated after the date of the request.

(3) The office shall seek access in a manner that respects the dignity and human rights of all persons involved, maintains the integrity of the investigation, and does not unnecessarily disrupt child welfare programs or services. When advance notice to a foster parent or to an administrator or his or her designee is not provided, the office investigator shall, upon arrival at the departmental office, bureau, or division, the private agency, the licensed child care facility, the juvenile detention facility, the staff secure juvenile facility, or the location of another provider of child welfare services, request that an onsite employee notify the administrator or his or her designee of the investigator's arrival.

(4) When circumstances of an investigation require, the office may make an unannounced visit to a foster home, a departmental office, bureau, or division, a licensed child care facility, a juvenile detention facility, a staff secure juvenile facility, a private agency, or another provider to request records relevant to an investigation.

(5) A responsible individual or an administrator may be asked to sign a statement of record integrity and security when a record is secured by request as the result of a visit by the office, stating:

(a) That the responsible individual or the administrator has made a diligent search of the office, bureau, division, private agency, licensed child care facility, juvenile detention facility, staff secure juvenile facility, or other provider's location to determine that all appropriate records in existence at the time of the request were produced;

(b) That the responsible individual or the administrator agrees to immediately forward to the office any relevant records received, located, or generated after the visit;

(d) Whether, to the best of the knowledge of the responsible individual or the administrator, any records were removed from or added to the record since it was secured.

(6) The office shall permit a responsible individual, an administrator, or an employee of a departmental office, bureau, or division, a private agency, a licensed child care facility, a juvenile detention facility, a staff secure juvenile facility, or another provider to make photocopies of the original records within a reasonable time in the presence of the office for purposes of creating a working record in a manner that assures confidentiality.

(7) The office shall present to the responsible individual or the administrator or other employee of the departmental office, bureau, or division, private agency, licensed child care facility, juvenile detention facility, staff secure juvenile facility, or other service provider a copy of the request, stating the date and the titles of the records received.

(8) If an original record is provided during an investigation, the office shall return the original record as soon as practical but no later than ten working days after the date of the compliance request.

(9) All investigations conducted by the office shall be conducted in a manner designed to ensure the preservation of evidence for possible use in a criminal prosecution.

Source:Laws 2012, LB821, § 31; Laws 2013, LB561, § 61; Laws 2015, LB347, § 17; Laws 2016, LB954, § 6.

43-4325. Reports of investigations; distribution; redact confidential information; powers of office; summarized final report; release.

(1) Reports of investigations conducted by the office shall not be distributed beyond the entity that is the subject of the report without the consent of the Inspector General.

(2) Except when a report is provided to a guardian ad litem or an attorney in the juvenile court pursuant to subsection (2) of section 43-4327, the office shall redact confidential information before distributing a report of an investigation. The office may disclose confidential information to the chairperson of the Health and Human Services Committee of the Legislature or the chairperson of the Judiciary Committee of the Legislature when such disclosure is, in the judgment of the Public Counsel, desirable to keep the chairperson informed of important events, issues, and developments in the Nebraska child welfare system.

(3)(a) A summarized final report based on an investigation may be publicly released in order to bring awareness to systemic issues.

(b) Such report shall be released only:

(i) After a disclosure is made to the appropriate chairperson or chairpersons pursuant to subsection (2) of this section; and

(ii) If a determination is made by the Inspector General with the appropriate chairperson that doing so would be in the best interest of the public.

(c) If there is disagreement about whether releasing the report would be in the best interest of the public, the chairperson of the Executive Board of the Legislative Council may be asked to make the final decision.

(4) Records and documents, regardless of physical form, that are obtained or produced by the office in the course of an investigation are not public records for purposes of sections 84-712 to 84-712.09. Reports of investigations conducted by the office are not public records for purposes of sections 84-712 to 84-712.09.

(5) The office may withhold the identity of sources of information to protect from retaliation any person who files a complaint or provides information in good faith pursuant to the Office of Inspector General of Nebraska Child Welfare Act.

Source:Laws 2012, LB821, § 32; Laws 2015, LB347, § 18; Laws 2017, LB207, § 4.

43-4326. Department; commission; juvenile services division; provide direct computer access.

(1) The department shall provide the Public Counsel and the Inspector General with direct computer access to all computerized records, reports, and documents maintained by the department in connection with administration of the Nebraska child welfare system.

(2) The commission shall provide the Inspector General with direct computer access to all computerized records, reports, and documents maintained in connection with administration of juvenile justice services.

(3) The juvenile services division, as directed by the juvenile court or the Office of Probation Administration, shall provide the Inspector General with direct computer access to all computerized records, reports, and documents maintained by the juvenile services division in connection with a specific case under investigation.

Source:Laws 2012, LB821, § 33; Laws 2015, LB347, § 19; Laws 2016, LB954, § 7.

43-4327. Inspector General's report of investigation; contents; distribution.

(1) The Inspector General's report of an investigation shall be in writing to the Public Counsel and shall contain recommendations. The report may recommend systemic reform or case-specific action, including a recommendation for discharge or discipline of employees or for sanctions against a foster parent, private agency, licensed child care facility, or other provider of child welfare services or juvenile justice services. All recommendations to pursue discipline shall be in writing and signed by the Inspector General. A report of an investigation shall be presented to the director, the probation administrator, or the executive director within fifteen days after the report is presented to the Public Counsel.

(2) Any person receiving a report under this section shall not further distribute the report or any confidential information contained in the report beyond the entity that is the subject of the report. The Inspector General, upon notifying the Public Counsel and the director, the probation administrator, or the executive director, may distribute the report, to the extent that it is relevant to a child's welfare, to the guardian ad litem and attorneys in the juvenile court in which a case is pending involving the child or family who is the subject of the report. The report shall not be distributed beyond the parties except through the appropriate court procedures to the judge.

(3) A report that identifies misconduct, misfeasance, malfeasance, or violation of statute, rules, or regulations by an employee of the department, the juvenile services division, the commission, a private agency, a licensed child care facility, or another provider that is relevant to providing appropriate supervision of an employee may be shared with the employer of such employee. The employer may not further distribute the report or any confidential information contained in the report.

Source:Laws 2012, LB821, § 34; Laws 2015, LB347, § 20; Laws 2017, LB207, § 5.

43-4328. Report; director, probation administrator, or executive director; accept, reject, or request modification; when final; written response; corrected report; credentialing issue; how treated.

(1) Within fifteen days after a report is presented to the director, the probation administrator, or the executive director under section 43-4327, he or she shall determine whether to accept, reject, or request in writing modification of the recommendations contained in the report. The written response may include corrections of factual errors. The Inspector General, with input from the Public Counsel, may consider the director's, probation administrator's, or executive director's request for modifications but is not obligated to accept such request. Such report shall become final upon the decision of the director, the probation administrator, or the executive director to accept or reject the recommendations in the report or, if the director, the probation administrator, or the executive director requests modifications, within fifteen days after such request or after the Inspector General incorporates such modifications, whichever occurs earlier.

(2) After the recommendations have been accepted, rejected, or modified, the report shall be presented to the foster parent, private agency, licensed child care facility, or other provider of child welfare services or juvenile justice services that is the subject of the report and to persons involved in the implementation of the recommendations in the report. Within thirty days after receipt of the report, the foster parent, private agency, licensed child care facility, or other provider may submit a written response to the office to correct any factual errors in the report and shall determine whether to accept, reject, or request in writing modification of the recommendations contained in the report. The Inspector General, with input from the Public Counsel, shall consider all materials submitted under this subsection to determine whether a corrected report shall be issued. If the Inspector General determines that a corrected report is necessary, the corrected report shall be issued within fifteen days after receipt of the written response.

(3) If the Inspector General does not issue a corrected report pursuant to subsection (2) of this section, or if the corrected report does not address all issues raised in the written response, the foster parent, private agency, licensed child care facility, or other provider may request that its written response, or portions of the response, be appended to the report or corrected report.

(4) A report which raises issues related to credentialing under the Uniform Credentialing Act shall be submitted to the appropriate credentialing board under the act.

Source:Laws 2012, LB821, § 35; Laws 2015, LB347, § 21; Laws 2017, LB207, § 6.

Cross References

Uniform Credentialing Act, see section 38-101.

43-4329. Report or work product; no court review.

No report or other work product of an investigation by the Inspector General shall be reviewable in any court. Neither the Inspector General nor any member of his or her staff shall be required to testify or produce evidence in any judicial or administrative proceeding concerning matters within his or her official cognizance except in a proceeding brought to enforce the Office of Inspector General of Nebraska Child Welfare Act.

Source:Laws 2012, LB821, § 36.

43-4330. Inspector General; investigation of complaints; priority and selection.

The Office of Inspector General of Nebraska Child Welfare Act does not require the Inspector General to investigate all complaints. The Inspector General, with input from the Public Counsel, shall prioritize and select investigations and inquiries that further the intent of the act and assist in legislative oversight of the Nebraska child welfare system and juvenile justice system. If the Inspector General determines that he or she will not investigate a complaint, the Inspector General may recommend to the parties alternative means of resolution of the issues in the complaint.

Source:Laws 2012, LB821, § 37; Laws 2015, LB347, § 22.

43-4331. Summary of reports and investigations; contents.

On or before September 15 of each year, the Inspector General shall provide to the Health and Human Services Committee of the Legislature, the Judiciary Committee of the Legislature, the Supreme Court, and the Governor a summary of reports and investigations made under the Office of Inspector General of Nebraska Child Welfare Act for the preceding year. The summary provided to the committees shall be provided electronically. The summaries shall detail recommendations and the status of implementation of recommendations and may also include recommendations to the committees regarding issues discovered through investigation, audits, inspections, and reviews by the office that will increase accountability and legislative oversight of the Nebraska child welfare system, improve operations of the department, the juvenile services division, the commission, and the Nebraska child welfare system, or deter and identify fraud, abuse, and illegal acts. Such summary shall include summaries of alternative response cases under alternative response implemented in accordance with sections 28-710.01, 28-712, and 28-712.01 reviewed by the Inspector General. The summaries shall not contain any confidential or identifying information concerning the subjects of the reports and investigations.

Source:Laws 2012, LB821, § 38; Laws 2013, LB222, § 12; Laws 2014, LB853, § 29; Laws 2015, LB347, § 23; Laws 2020, LB1061, § 9.

43-4332. Disclosure of information by employee; personnel actions prohibited.

Any person who has authority to recommend, approve, direct, or otherwise take or affect personnel action shall not, with respect to such authority:

(1) Take personnel action against an employee because of the disclosure of information by the employee to the office which the employee reasonably believes evidences wrongdoing under the Office of Inspector General of Nebraska Child Welfare Act;

(2) Take personnel action against an employee as a reprisal for the submission of an allegation of wrongdoing under the act to the office by such employee; or

(3) Take personnel action against an employee as a reprisal for providing information or testimony pursuant to an investigation by the office.

Source:Laws 2017, LB207, § 7.

43-4401. Terms, defined.

For purposes of sections 43-4401 to 43-4407:

(1) Department means the Department of Health and Human Services; and

(2) Service area means a geographic area administered by the department and designated pursuant to section 81-3116.

Source:Laws 2012, LB1160, § 1; Laws 2022, LB1173, § 11.

43-4402. Legislative findings.

The Legislature finds that the department needs a uniform electronic data collection system to collect and evaluate data regarding children served, the quality of child welfare services provided, and the outcomes produced by such child welfare services.

Source:Laws 2012, LB1160, § 2; Laws 2022, LB1173, § 12.

43-4403. Legislative intent.

It is the intent of the Legislature:

(1) To provide for (a) legislative oversight of the child welfare system through an improved electronic data collection system, (b) improved child welfare outcome measurements through increased reporting by the department, and (c) an independent evaluation of the child welfare system; and

(2) To develop an electronic data collection system to integrate child welfare information into one system to more effectively manage, track, and share information, especially in child welfare case management.

Source:Laws 2012, LB1160, § 3; Laws 2022, LB1173, § 13.

43-4404. Child welfare information system; department; duties; objectives; capacity.

(1) The department shall develop and implement a web-based, statewide automated child welfare information system to integrate child welfare information into one system. Objectives for the web-based, statewide automated child welfare information system shall include: (a) Improving efficiency and effectiveness by reducing paperwork and redundant data entry, allowing case managers to spend more time working with families and children; (b) improving access to information and tools that support consistent policy and practice standards across the state; (c) facilitating timely and quality case management decisions and actions by providing alerts and accurate information, including program information and prior child welfare case histories within the department or a division thereof or from other agencies; (d) providing consistent and accurate data management to improve reporting capabilities, accountability, workload distribution, and child welfare case review requirements; (e) establishing integrated payment processes and procedures for tracking services available and provided to children and accurately paying for those services; (f) improving the capacity for case managers to complete major functional areas of their work, including intake, investigations, placements, foster care eligibility determinations, reunifications, adoptions, financial management, resource management, and reporting; (g) utilizing business intelligence software to track progress through dashboards; (h) access to real-time data to identify specific child welfare cases and take immediate corrective and supportive actions; (i) helping case managers to expediently identify foster homes and community resources available to meet each child’s needs; and (j) providing opportunity for greater accuracy, transparency, and oversight of the child welfare system through improved reporting and tracking capabilities.

(2) The capacity of the web-based, statewide automated child welfare information system shall include: (a) Integration across related social services programs through automated interfaces, including, but not limited to, the courts, medicaid eligibility, financial processes, and child support; (b) ease in implementing future system modifications as user requirements or policies change; (c) compatibility with multiple vendor platforms; (d) system architecture that provides multiple options to build additional capacity to manage increased user transactions as system volume requirements increase over time; (e) protection of the system at every tier in case of hardware, software, power, or other system component failure; (f) vendor portals to support direct entry of child welfare case information, as appropriate, by private providers' staff serving children, to increase collaboration between private providers and the department; (g) key automated process analysis to allow supervisors and management to identify child welfare cases not meeting specified goals, identify issues, and report details and outcome measures to cellular telephones or other mobile communication devices used by management and administration; (h) web-based access and availability twenty-four hours per day, seven days per week; (i) automated application of policy and procedures, to make application of policy less complex and easier to follow; (j) automated prompts and alerts when actions are due, to enable case managers and supervisors to manage child welfare cases more efficiently; and (k) compliance with federal regulations related to statewide automated child welfare information systems at 45 C.F.R. 1355.50 through 1355.57, implementing section 474(a)(3)(C) and (D) of Title IV-E of the federal Social Security Act, 42 U.S.C. 674(a)(3)(C) and (D), as such regulations and section existed on January 1, 2012.

Source:Laws 2012, LB1160, § 4.

43-4405. Statewide automated child welfare information system; report; contents.

On or before December 1, 2012, the department, with assistance from other agencies as necessary, including the data coordinator for the State Foster Care Review Board or a successor entity to the powers and duties of the board, shall report in writing to the Legislature on a plan for the statewide automated child welfare information system described in section 43-4404. The report shall include a review of the design, development, implementation, and cost of the system. The report shall describe the requirements of the system and all available options and compare costs of the options. The report shall include, but not be limited to, a review of the options for (1) system functionality, (2) the potential of the system's use of shared services in areas including, but not limited to, intake, rules, financial information, and reporting, (3) integration, (4) maintenance costs, (5) application architecture to enable flexibility and scalability, (6) deployment costs, (7) licensing fees, (8) training requirements, and (9) operational costs and support needs. The report shall compare the costs and benefits of a custom-built system and a commercial off-the-shelf system, the total cost of ownership, including both direct and indirect costs, and the costs of any other options considered. In conjunction with the report, the department shall prepare the advance planning document required to qualify for federal funding for the statewide automated child welfare information system pursuant to 45 C.F.R. 1355.50 through 1355.57, implementing section 474(a)(3)(C) and (D) of Title IV-E of the federal Social Security Act, 42 U.S.C. 674(a)(3)(C) and (D), as such regulations and section existed on January 1, 2012. The advance planning document shall describe the proposed plan for managing the design, development, and operations of a statewide automated child welfare information system that meets such federal requirements and the state's needs in an efficient, comprehensive, and cost-effective manner.

Source:Laws 2012, LB1160, § 5.

43-4406. Child welfare services; report; contents.

On or before each September 15, the department shall report electronically to the Health and Human Services Committee of the Legislature the following information regarding child welfare services, with respect to children served by the department:

(1) The percentage of children served and the allocation of the child welfare budget, categorized by service area, including:

(a) The percentage of children served, by service area and the corresponding budget allocation; and

(b) The percentage of children served who are wards of the state and the corresponding budget allocation;

(2) The number of siblings in out-of-home care placed with siblings as of the June 30 immediately preceding the date of the report, categorized by service area;

(3) The number of waivers granted under subsection (2) of section 71-1904;

(4) An update of the information in the report of the Children's Behavioral Health Task Force pursuant to sections 43-4001 to 43-4003, including:

(a) The number of children receiving mental health and substance abuse services annually by the Division of Behavioral Health of the department;

(b) The number of children receiving behavioral health services annually at the Hastings Regional Center;

(c) The number of state wards receiving behavioral health services as of September 1 immediately preceding the date of the report;

(d) Funding sources for children's behavioral health services for the fiscal year ending on the immediately preceding June 30;

(e) Expenditures in the immediately preceding fiscal year by the division, categorized by category of behavioral health service and by behavioral health region; and

(f) Expenditures in the immediately preceding fiscal year from the medical assistance program and CHIP as defined in section 68-969 for mental health and substance abuse services, for all children and for wards of the state;

(5) The following information as obtained for each service area:

(a) Case manager education, including college degree, major, and level of education beyond a baccalaureate degree;

(b) Average caseload per case manager;

(d) Average number of case managers per child for children who have been in the child welfare system for three months, for six months, for twelve months, and for eighteen months and the consecutive yearly average for children until the age of majority or permanency is attained;

(e) Monthly case manager turnover;

(f) Monthly face-to-face contacts between each case manager and the children on his or her caseload;

(g) Monthly face-to-face contacts between each case manager and the parent or parents of the children on his or her caseload;

(h) Case documentation of monthly consecutive team meetings per quarter;

(i) Case documentation of monthly consecutive parent contacts per quarter;

(j) Case documentation of monthly consecutive child contacts with case manager per quarter;

(k) Case documentation of monthly consecutive contacts between child welfare service providers and case managers per quarter;

(l) Timeliness of court reports; and

(m) Non-court-involved children, including the number of children served, the types of services requested, the specific services provided, the cost of the services provided, and the funding source;

(6) All placements in residential treatment settings made or paid for by the child welfare system, the Office of Juvenile Services, the State Department of Education or local education agencies, and the medical assistance program, including, but not limited to:

(a) Child variables;

(b) Reasons for placement;

(d) With respect to each child in a residential treatment setting:

(i) If there was a denial of initial placement request, the length and level of each placement subsequent to denial of initial placement request and the status of each child before and immediately after, six months after, and twelve months after placement;

(ii) Funds expended and length of placements;

(iii) Number and level of placements;

(iv) Facility variables; and

(v) Identification of specific child welfare services unavailable in the child's community that, if available, could have prevented the need for residential treatment; and

(e) Identification of child welfare services unavailable in the state that, if available, could prevent out-of-state placements;

(7) For any individual involved in the child welfare system receiving a service or a placement through the department or its agent for which referral is necessary, the date when such referral was made by the department or its agent and the date and the method by which the individual receiving the services was notified of such referral. To the extent the department becomes aware of the date when the individual receiving the referral began receiving such services, the department or its agent shall document such date;

(8) The number of sexual abuse allegations that occurred for children being served by the Division of Children and Family Services of the Department of Health and Human Services and placed at a residential child-caring agency and the number of corresponding (a) screening decision occurrences by category, (b) open investigations by category, and (c) agency substantiations, court substantiations, and court-pending status cases; and

(9) Information on children who are reported or suspected victims of sex trafficking of a minor or labor trafficking of a minor, as defined in section 28-830, including:

(a) The number of reports to the statewide toll-free number pursuant to section 28-711 alleging sex trafficking of a minor or labor trafficking of a minor and the number of children alleged to be victims;

(b) The number of substantiated victims of sex trafficking of a minor or labor trafficking of a minor, including demographic information and information on whether the children were already served by the department;

(c) The number of children determined to be reported or suspected victims of sex trafficking of a minor or labor trafficking of a minor, including demographic information and information on whether the children were previously served by the department;

(d) The types and costs of services provided to children who are reported or suspected victims of sex trafficking of a minor or labor trafficking of a minor; and

(e) The number of ongoing cases opened due to allegations of sex trafficking of a minor or labor trafficking of a minor and number of children and families served through these cases.

Source:Laws 2012, LB1160, § 6; Laws 2013, LB222, § 13; Laws 2017, LB417, § 6; Laws 2018, LB1078, § 5; Laws 2019, LB519, § 15; Laws 2022, LB1173, § 14.

43-4407. Service area administrator; annual survey; duties; reports.

(1) Each service area administrator shall annually survey children, parents, foster parents, judges, guardians ad litem, attorneys representing parents, and service providers involved with the child welfare system to monitor satisfaction with (a) adequacy of communication by the case manager, (b) response by the department to requests and problems, (c) transportation issues, (d) medical and psychological services for children and parents, (e) visitation schedules, (f) payments, (g) support services to foster parents, (h) adequacy of information about foster children provided to foster parents, and (i) the case manager's fulfillment of his or her responsibilities. A summary of the survey shall be reported electronically to the Health and Human Services Committee of the Legislature on September 15, 2012, and each September 15 thereafter.

(2) Each service area administrator shall provide monthly reports to the child advocacy center that corresponds with the geographic location of the child regarding the services provided through the department when the child is identified as a voluntary or non-court-involved child welfare case. The monthly report shall include the plan implemented by the department for the child and family and the status of compliance by the family with the plan. The child advocacy center shall report electronically to the Health and Human Services Committee of the Legislature on September 15, 2012, and every September 15 thereafter, or more frequently if requested by the committee.

Source:Laws 2012, LB1160, § 7; Laws 2013, LB222, § 14; Laws 2022, LB1173, § 15.

43-4408. Repealed. Laws 2022, LB1173, § 23.

43-4409. Repealed. Laws 2022, LB1173, § 23.

43-4410. Contract to provide child welfare services; evidence of financial stability and liquidity required; prohibited acts.

(1) Any entity seeking to enter into a contract with the Department of Health and Human Services to provide child welfare services shall provide evidence of financial stability and liquidity prior to executing such contract.

(2) An entity contracting with the department to provide child welfare services shall not require any subcontractor or employee of such contractor or subcontractor to sign an agreement not to compete with such contractor as a condition of subcontracting or employment.

Source:Laws 2013, LB269, § 10.

43-4411. Child welfare system; legislative findings and intent.

(1) The Legislature finds that the State of Nebraska, in order to support the well-being, permanency, and safety of children and families in Nebraska's communities, needs to comprehensively transform its child welfare system. The Legislature further finds that this comprehensive transformation will require an integrated model addressing all aspects of the system and strong partnerships among the legislative, executive, and judicial branches of government and community stakeholders.

(2) It is the intent of the Legislature to:

(a) Establish an intersectoral child welfare practice model work group;

(b) Establish appropriate strategic leadership and guidance for practice and finance model development from across the three branches of government; and

Source:Laws 2022, LB1173, § 1.

43-4412. Child welfare system; terms, defined.

For purposes of sections 43-4411 to 43-4416:

(1) Child welfare system means children and families receiving, and persons providing or effecting:

(a) In-home and out-of-home child welfare case management services;

(b) Physical and behavioral health care;

(d) Adoption or guardianship assistance services;

(e) Prevention services;

(f) Post-adoption or post-guardianship related services; and

(g) Public or private education and training services;

(2) Individual with lived experience in the child welfare system means an individual who has previously received services from the child welfare system, currently receives such services, or is at risk of needing such services and who has valuable insight to contribute;

(3) Practice and finance model means an evidence-based or evidence-informed approach to the practice and financing of the child welfare system across the State of Nebraska;

(4) Strategic leadership group means the child welfare strategic leadership group created in section 43-4414; and

(5) Work group means the child welfare practice model work group created in section 43-4413.

Source:Laws 2022, LB1173, § 2.

43-4413. Child welfare system; work group; established; duties.

(1) There is hereby established a child welfare practice model work group. The work group may include, but is not limited to:

(a) The Director of Behavioral Health of the Division of Behavioral Health or the director's designee;

(b) The Director of Children and Family Services of the Division of Children and Family Services or the director's designee;

(d) The Director of Medicaid and Long-Term Care of the Division of Medicaid and Long-Term Care or the director's designee;

(e) The Director of Public Health of the Division of Public Health or the director's designee;

(f) The Commissioner of Education or the commissioner's designee;

(g) The State Court Administrator;

(h) A representative of the state judicial branch to be appointed by the Chief Justice; and

(i) Representatives from each federally recognized Indian tribe within the State of Nebraska, appointed by each tribe's Tribal Council or Executive Committee.

(2) The work group shall develop a practice and finance model for child welfare system transformation in Nebraska, with consultation from key stakeholders, judges from separate juvenile courts and judges of county courts sitting as juvenile courts, private child welfare providers, individuals with lived experience in the child welfare system, the Nebraska Children's Commission, the Inspector General of Nebraska Child Welfare, the Foster Care Review Office, child advocacy centers, law enforcement, and county attorneys. The practice and finance model shall include, but not be limited to:

(a) Development of a statewide mission and vision for the child welfare system in Nebraska;

(b) Development of values and practice priorities for the child welfare system in Nebraska;

(c) Development of statewide program goals and a practice and finance model for child welfare system case management and service delivery;

(d) Development of engagement strategies to support community involvement in child welfare system transformation;

(e) Development of strategies that strengthen relationships across the court system, probation, executive branch agencies, the State Department of Education, and community partners;

(f) Development of strategies that support integration across agencies;

(g) Development of accountabilities across the entire child welfare system;

(h) Evaluation of the state's Title IV-E claiming practices and identification of appropriate steps to optimize federal reimbursement for child welfare system expenditures;

(i) Opportunities and financial mechanisms for providers to pilot innovative solutions to meet program goals; and

(j) Development of a strategy for data collection and outcome monitoring.

(3) The work group shall provide monthly updates to the strategic leadership group.

Source:Laws 2022, LB1173, § 3.

43-4414. Child welfare system; strategic leadership group; members.

There is hereby established a child welfare strategic leadership group. The strategic leadership group shall be a nonvoting group that exists for purposes of receiving updates on the work group's activities. The strategic leadership group shall consist of:

(1) The chairperson of the Judiciary Committee of the Legislature;

(2) The chairperson of the Health and Human Services Committee of the Legislature;

(3) The Chief Justice or the Chief Justice's designee; and

(4) The chief executive officer of the Department of Health and Human Services or such officer's designee.

Source:Laws 2022, LB1173, § 4.

43-4415. Child welfare system; work group; consultant; submit practice and finance model framework.

(1) The Department of Health and Human Services shall contract with an outside consultant with expertise in child welfare system transformation by December 15, 2022. The consultant shall assist the work group with the development of a written framework for the practice and finance model.

(2) On or before December 1, 2023, the work group shall electronically submit the written practice and finance model framework to the Health and Human Services Committee of the Legislature.

Source:Laws 2022, LB1173, § 5.

43-4416. Child welfare system; work group; strategic leadership group; termination.

The work group and strategic leadership group shall terminate on December 31, 2023.

Source:Laws 2022, LB1173, § 6.

43-4501. Act, how cited.

Sections 43-4501 to 43-4514 shall be known and may be cited as the Young Adult Bridge to Independence Act.

Source:Laws 2013, LB216, § 1; Laws 2014, LB853, § 30; Laws 2015, LB243, § 14.

43-4502. Purpose of act.

The purpose of the Young Adult Bridge to Independence Act is to provide support for former state or tribal wards, and for other youth who are exiting state care, who are disconnected from family support, and who are at risk of homelessness, as they transition to adulthood, become self-sufficient, and create permanent relationships. The bridge to independence program shall at all times recognize and respect the autonomy of the young adult. Nothing in the Young Adult Bridge to Independence Act shall be construed to abrogate any other rights that a person who has attained eighteen or nineteen years of age may have as an adult under state or tribal law.

Source:Laws 2013, LB216, § 2; Laws 2014, LB853, § 31; Laws 2020, LB848, § 3; Laws 2023, LB50, § 25.

43-4503. Terms, defined.

For purposes of the Young Adult Bridge to Independence Act:

(1) Age of eligibility means:

(a) Nineteen years of age; or

(b) Eighteen years of age if the young adult has attained the age of majority under tribal law;

(2) Bridge to independence program means the extended services and support available to a young adult under the Young Adult Bridge to Independence Act other than extended guardianship assistance described in section 43-4511 and extended adoption assistance described in section 43-4512;

(3) Child means an individual who has not attained twenty-one years of age;

(4) Department means the Department of Health and Human Services;

(5) Supervised independent living setting means an independent supervised setting, consistent with 42 U.S.C. 672(c). Supervised independent living settings shall include, but not be limited to, single or shared apartments, houses, host homes, college dormitories, or other postsecondary educational or vocational housing;

(6) Voluntary services and support agreement means a voluntary placement agreement as defined in 42 U.S.C. 672(f) between the department and a young adult as his or her own guardian; and

(7) Young adult means an individual who has attained the age of eligibility but who has not attained twenty-one years of age.

Source:Laws 2013, LB216, § 3; Laws 2014, LB853, § 32; Laws 2015, LB243, § 15; Laws 2020, LB848, § 4.

43-4504. Bridge to independence program; availability.

The bridge to independence program is available, on a voluntary basis, to a young adult:

(1) Who has attained the age of eligibility;

(2) Who was adjudicated to be a juvenile described in:

(a) Subdivision (3)(a) of section 43-247 or the equivalent under tribal law;

(b) Subdivision (8) of section 43-247 or the equivalent under tribal law if the young adult's guardianship or state-funded adoption assistance agreement was disrupted or terminated after he or she had attained the age of sixteen years and (i) who, upon attaining the age of eligibility, was in an out-of-home placement or had been discharged to independent living or (ii) with respect to whom a kinship guardianship assistance agreement or an adoption assistance agreement was in effect pursuant to 42 U.S.C. 673 if the young adult had attained sixteen years of age before the agreement became effective or with respect to whom a state-funded guardianship assistance agreement or a state-funded adoption assistance agreement was in effect if the young adult had attained sixteen years of age before the agreement became effective; or

(c) Subdivision (1), (2), or (3)(b) of section 43-247 and (i) after January 1, 2025, upon one day prior to attaining nineteen years of age or the age of majority under relevant tribal law, was in a court-ordered out-of-home placement and (ii) such placement had been authorized or reauthorized in the six months prior to the juvenile attaining nineteen years of age in a court order finding that it would be contrary to the welfare of the juvenile to remain in or return to the juvenile's family home;

(3) Who is:

(a) Completing secondary education or an educational program leading to an equivalent credential;

(b) Enrolled in an institution which provides postsecondary or vocational education;

(d) Participating in a program or activity designed to promote employment or remove barriers to employment; or

(e) Incapable of doing any of the activities described in subdivisions (3)(a) through (d) of this section due to a medical condition, which incapacity is supported by regularly updated information in the case plan of the young adult;

(4) Who is a Nebraska resident, except that this requirement shall not disqualify a young adult who was a Nebraska resident but was placed outside Nebraska pursuant to the Interstate Compact for the Placement of Children; and

(5) Who does not meet the level of care for a nursing facility as defined in section 71-424, for a skilled nursing facility as defined in section 71-429, or for an intermediate care facility for persons with developmental disabilities as defined in section 71-421.

Source:Laws 2013, LB216, § 4; Laws 2014, LB853, § 33; Laws 2015, LB243, § 16; Laws 2019, LB600, § 11; Laws 2020, LB848, § 5; Laws 2023, LB50, § 26.

Cross References

Interstate Compact for the Placement of Children, see section 43-1103.

43-4505. Extended services and support; services enumerated.

Extended services and support provided under the bridge to independence program include, but are not limited to:

(1) Medical care under the medical assistance program for young adults who meet the eligibility requirements of section 43-4504 and have signed a voluntary services and support agreement as provided in section 43-4506;

(2) Medical care under the medical assistance program for young adults who meet the eligibility requirements of subdivision (2)(c) of section 43-4504, are eligible for a category of medical assistance pursuant to section 68-915 or other medical assistance category under federal law, and have signed a voluntary services and support agreement as provided in section 43-4506;

(3) Housing, placement, and support in the form of foster care maintenance payments which shall remain at least at the rate set immediately prior to the young adult's exit from foster care. As decided by and with the young adult, young adults may reside in a foster family home, a supervised independent living setting, an institution, or a foster care facility. Placement in an institution or a foster care facility should occur only if necessary due to a young adult's developmental level or medical condition. A young adult who is residing in a foster care facility upon leaving foster care may choose to temporarily stay until he or she is able to transition to a more age-appropriate setting. For young adults residing in a supervised independent living setting:

(a) The department may send all or part of the foster care maintenance payments directly to the young adult. This should be decided on a case-by-case basis by and with the young adult in a manner that respects the independence of the young adult; and

(b) Rules and restrictions regarding housing options should be respectful of the young adult's autonomy and developmental maturity. Specifically, safety assessments of the living arrangements shall be age-appropriate and consistent with federal guidance on a supervised setting in which the individual lives independently. A clean background check shall not be required for an individual residing in the same residence as the young adult; and

(4) Case management services that are young-adult driven. Case management shall be a continuation of the independent living transition proposal in section 43-1311.03, including a written description of additional resources that will help the young adult in creating permanent relationships and preparing for the transition to adulthood and independent living. Case management shall include the development of a case plan, developed jointly by the department and the young adult, that includes a description of the identified housing situation or living arrangement, the resources to assist the young adult in the transition from the bridge to independence program to adulthood, and the needs listed in subsection (1) of section 43-1311.03. The case plan shall incorporate the independent living transition proposal in section 43-1311.03. A new plan shall be developed for young adults who have no previous independent living transition proposal. Case management shall also include, but not be limited to, documentation that assistance has been offered and provided that would help the young adult meet his or her personal goals, if such assistance is appropriate and if the young adult is eligible and consents to receive such assistance. This shall include, but not be limited to, assisting the young adult to:

(a) Obtain employment or other financial support;

(b) Obtain a government-issued identification card;

(d) Obtain appropriate community resources, including health, mental health, developmental disability, and other disability services and support;

(e) When appropriate, satisfy any juvenile justice system requirements and assist with sealing the young adult's juvenile court record if the young adult is eligible under section 43-2,108.01;

(f) Complete secondary education;

(g) Apply for admission and aid for postsecondary education or vocational courses;

(h) Obtain the necessary state court findings and then apply for special immigrant juvenile status as defined in 8 U.S.C. 1101(a)(27)(J) or apply for other immigration relief that the young adult may be eligible for;

(i) Create a health care power of attorney, health care proxy, or other similar document recognized under state law, at the young adult's option, pursuant to the federal Patient Protection and Affordable Care Act, Public Law 111-148;

(j) Obtain a copy of health and education records of the young adult;

(k) Apply for any public benefits or benefits that the young adult may be eligible for or may be due through his or her parents or relatives, including, but not limited to, aid to dependent children, supplemental security income, social security disability insurance, social security survivors benefits, the Special Supplemental Nutrition Program for Women, Infants, and Children, the Supplemental Nutrition Assistance Program, and low-income home energy assistance programs;

(l) Maintain relationships with individuals who are important to the young adult, including searching for individuals with whom the young adult has lost contact;

(m) Access information about maternal and paternal relatives, including any siblings;

(n) Access young adult empowerment opportunities, such as Project Everlast and peer support groups; and

(o) Access pregnancy and parenting resources and services.

Source:Laws 2013, LB216, § 5; Laws 2014, LB853, § 34; Laws 2015, LB243, § 17; Laws 2023, LB50, § 27.

Annotations

Immigration relief services, under subdivision (3)(h) of this section, is an exception where the Department of Health and Human Services may offer immigration assistance to unlawful aliens until they are 21 years old. E.M. v. Nebraska Dept. of Health & Human Servs., 306 Neb. 1, 944 N.W.2d 252 (2020).

43-4506. Participation in bridge to independence program; voluntary services and support agreement; contents; services provided; independence coordinator; department; duties.

(1) If a young adult chooses to participate in the bridge to independence program and is eligible under section 43-4504, the young adult and the department shall sign, and the young adult shall be provided a copy of, a voluntary services and support agreement that includes, at a minimum, information regarding all of the following:

(a) The requirement that the young adult continue to be eligible under section 43-4504 for the duration of the voluntary services and support agreement and any other expectations of the young adult;

(b) The services and support the young adult shall receive through the bridge to independence program;

(c) The voluntary nature of the young adult's participation and the young adult's right to terminate the voluntary services and support agreement at any time; and

(d) Conditions that may result in the termination of the voluntary services and support agreement and the young adult's early discharge from the bridge to independence program as described in section 43-4507.

(2) As soon as the young adult and the department sign the voluntary services and support agreement and the department determines that the young adult is eligible for the bridge to independence program under section 43-4504, but not longer than fifteen days after signing the agreement, the department shall provide services and support to the young adult in accordance with the voluntary services and support agreement.

(3) A young adult participating in the bridge to independence program shall be assigned an independence coordinator to provide case management services for the young adult. Independence coordinators and their supervisors shall be specialized in primarily providing services for young adults in the bridge to independence program or shall, at minimum, have specialized training in providing transition services and support to young adults.

(4) The department shall provide continued efforts at achieving permanency and creating permanent connections for a young adult participating in the bridge to independence program.

(5) The department shall fulfill all case plan obligations consistent with 42 U.S.C. 675(1).

(6) As soon as possible after the young adult is determined eligible for the bridge to independence program under section 43-4504 and signs the voluntary services and support agreement, the department shall conduct a determination of income eligibility for purposes of Title IV-E of the federal Social Security Act, 42 U.S.C. 672.

Source:Laws 2013, LB216, § 6; Laws 2014, LB853, § 35; Laws 2015, LB243, § 18.

43-4507. Termination of voluntary services and support agreement; notice; appeal; procedure; department; duties.

(1) A young adult may choose to terminate the voluntary services and support agreement and stop receiving services and support under the bridge to independence program at any time. If a young adult chooses to terminate the voluntary services and support agreement, the department shall provide the young adult with a clear and developmentally appropriate written notice informing the young adult of the potential negative effects of terminating the voluntary services and support agreement early, the option to reenter the bridge to independence program at any time before attaining twenty-one years of age, the procedures for reentering the bridge to independence program, and information about and contact information for community resources that may benefit the young adult, specifically including information regarding state programs established pursuant to 42 U.S.C. 677.

(2) If the department determines that the young adult is no longer eligible for the bridge to independence program under section 43-4504, the department may terminate the voluntary services and support agreement and stop providing services and support to the young adult. Academic breaks in postsecondary education attendance, such as semester and seasonal breaks, and other transitions between eligibility requirements under section 43-4504, including education and employment transitions of no longer than thirty days, shall not be a basis for termination. Even if a young adult's voluntary services and support agreement has been previously terminated by either the department or the young adult, the young adult may come back into the bridge to independence program by entering into another voluntary services and support agreement at any time, so long as he or she is eligible under section 43-4504. At least thirty days prior to the termination of the voluntary services and support agreement, the department shall provide a clear and developmentally appropriate written notice to the young adult informing the young adult of the termination of the voluntary services and support agreement and a clear and developmentally appropriate explanation of the basis for the termination. The written termination notice shall also provide information about the process for appealing the termination, information about the option to enter into another voluntary services and support agreement once the young adult reestablishes eligibility under section 43-4504, and information about and contact information for community resources that may benefit the young adult, specifically including information regarding state programs established pursuant to 42 U.S.C. 677. In addition, the independence coordinator shall make efforts to meet with the young adult in person to explain the information in the written termination notice and to assist the young adult in reestablishing eligibility if the young adult wishes to continue participating in the program. The young adult may appeal the termination of the voluntary services and support agreement and any other actions or inactions by the department administratively, as allowed under the Administrative Procedure Act.

(3) If the young adult remains in the bridge to independence program until attaining twenty-one years of age, the department shall provide the young adult with a clear and developmentally appropriate written notice informing the young adult of the termination of the voluntary services and support agreement and information about and contact information for community resources that may benefit the young adult, specifically including information regarding state programs established pursuant to 42 U.S.C. 677.

Source:Laws 2013, LB216, § 7; Laws 2014, LB853, § 36.

Cross References

Administrative Procedure Act, see section 84-920.

43-4508. Department; filing with juvenile court; contents; jurisdiction of court; bridge to independence program file; hearing for permanency review; appointment of hearing officer; department; duties; court review services and support; confidentiality; waiver.

(1) Within fifteen days after the voluntary services and support agreement is signed, the department shall file a petition with the juvenile court describing the young adult's current situation, including the young adult's name, date of birth, and current address and the reasons why it is in the young adult's best interests to participate in the bridge to independence program. The department shall also provide the juvenile court with a copy of the signed voluntary services and support agreement, a copy of the case plan, and any other information the department or the young adult wants the court to consider.

(2) The department shall ensure continuity of care and eligibility by working with a child who wants to participate in the bridge to independence program and, pursuant to section 43-4504, is likely to be eligible to participate in such program immediately following the termination of the juvenile court's jurisdiction pursuant to subdivision (1), (2), (3)(a), or (3)(b) of section 43-247 or subdivision (8) of section 43-247 if the young adult's guardianship or state-funded adoption assistance agreement was disrupted or terminated after he or she had attained the age of sixteen years. The voluntary services and support agreement shall be signed and the petition filed with the court upon the child's nineteenth birthday or within ten days thereafter. There shall be no interruption in the foster care maintenance payment and medical assistance coverage for a child who is eligible and chooses to participate in the bridge to independence program immediately following the termination of the juvenile court's jurisdiction pursuant to subdivision (1), (2), (3)(a), or (3)(b) of section 43-247.

(3) The court has the jurisdiction to review the voluntary services and support agreement signed by the department and the young adult under section 43-4506 and to conduct permanency reviews as described in this section. Upon the filing of a petition under subsection (1) of this section, the court shall open a bridge to independence program file for the young adult for the purpose of determining whether continuing in such program is in the young adult's best interests and for the purpose of conducting permanency reviews.

(4) The court shall make the best interests determination as described in subsection (3) of this section not later than one hundred eighty days after the young adult and the department enter into the voluntary services and support agreement.

(5) The court shall conduct a hearing for permanency review consistent with 42 U.S.C. 675(5)(C) as described in subsection (6) of this section regarding the voluntary services and support agreement at least once per year and may conduct such hearing at additional times, but not more times than is reasonably practicable, at the request of the young adult, the department, or any other party to the proceeding. The court shall make a reasonable effort finding required by subdivision (6)(c) of this section within twelve months after the court makes its best interests determination under subsection (4) of this section. Upon the filing of the petition as provided in subsection (1) of this section or anytime thereafter, the young adult may request, in the voluntary services and support agreement or by other appropriate means, a timeframe in which the young adult prefers to have the permanency review hearing scheduled and the court shall seek to accommodate the request as practicable and consistent with 42 U.S.C. 675(5)(C). The juvenile court may request the appointment of a hearing officer pursuant to section 24-230 to conduct permanency review hearings. The department is not required to have legal counsel present at such hearings. The juvenile court shall conduct the permanency reviews in an expedited manner and shall issue findings and orders, if any, as speedily as possible.

(6)(a) The primary purpose of the permanency review is to ensure that the bridge to independence program is providing the young adult with the needed services and support to help the young adult move toward permanency and self-sufficiency. This shall include that, in all permanency reviews or hearings regarding the transition of the young adult from foster care to independent living, the court shall consult, in an age-appropriate manner, with the young adult regarding the proposed permanency or transition plan for the young adult. The young adult shall have a clear self-advocacy role in the permanency review in accordance with section 43-4510, and the hearing shall support the active engagement of the young adult in key decisions. Permanency reviews shall be conducted on the record and in an informal manner and, whenever possible, outside of the courtroom.

(b) The department shall prepare and present to the juvenile court a report, at the direction of the young adult, addressing progress made in meeting the goals in the case plan, including the independent living transition proposal, and shall propose modifications as necessary to further those goals.

(c) The court shall determine whether the bridge to independence program is providing the appropriate services and support as provided in the voluntary services and support agreement to carry out the case plan. The court shall also determine whether reasonable efforts have been made to achieve the permanency goal as set forth in the case plan and the department's report provided under subdivision (6)(b) of this section. The court shall issue specific written findings regarding such reasonable efforts. The court has the authority to determine whether the young adult is receiving the services and support he or she is entitled to receive under the Young Adult Bridge to Independence Act and the department's policies or state or federal law to help the young adult move toward permanency and self-sufficiency. If the court believes that the young adult requires additional services and support to achieve the goals documented in the case plan or under the Young Adult Bridge to Independence Act and the department's policies or state or federal law, the court may make appropriate findings or order the department to take action to ensure that the young adult receives the identified services and support.

(7) All pleadings, filings, documents, and reports filed pursuant to this section and subdivision (11) of section 43-247 shall be confidential. The proceedings pursuant to this section and subdivision (11) of section 43-247 shall be confidential unless a young adult provides a written waiver or a verbal waiver in court. Such waiver may be made by the young adult in order to permit the proceedings to be held outside of the courtroom or for any other reason. The Foster Care Review Office shall have access to any and all pleadings, filings, documents, reports, and proceedings necessary to complete its case review process. This section shall not prevent the juvenile court from issuing an order identifying individuals and agencies who shall be allowed to receive otherwise confidential information for legitimate and official purposes as authorized by section 43-3001.

Source:Laws 2013, LB216, § 8; Laws 2014, LB853, § 37; Laws 2015, LB243, § 19; Laws 2019, LB600, § 12; Laws 2023, LB50, § 28.

43-4508.01. Permanency review or case review; independence coordinator; duties.

At least thirty days prior to each permanency review or case review, the independence coordinator shall meet with the young adult to notify the young adult of the date, time, and location of the review, to explain the purpose of the review, and to identify additional persons the young adult would like to attend the review and assist in making arrangements for their attendance.

Source:Laws 2014, LB853, § 38.

43-4509. Department; periodic case reviews; written notice; contents.

(1) The department and at least one person who is not responsible for case management, in collaboration with the young adult and additional persons identified by the young adult, shall conduct periodic case reviews consistent with 42 U.S.C. 675(5)(B) not less than once every one hundred eighty days to evaluate progress made toward meeting the goals set forth in the case plan. The department is not required to have legal counsel present at such reviews. The department shall utilize a team approach in conducting such reviews and shall seek to facilitate the participation of the young adult. Reviews shall be conducted in an informal manner and, whenever possible, scheduled at times that allow for the attendance and participation of the young adult.

(2) At the end of each case review, the reviewer conducting the periodic case review shall notify the young adult of his or her right to request a client-directed attorney and an additional permanency review and shall provide the young adult with a clear and developmentally appropriate written notice regarding the young adult's right to request a client-directed attorney, the benefits and role of such attorney, the specific steps to take to request that an attorney be appointed, the young adult's right to request an additional permanency review hearing, the potential benefits and purpose of such a hearing, and the specific steps to take to request an additional permanency review hearing.

Source:Laws 2013, LB216, § 9; Laws 2014, LB853, § 39.

43-4510. Court-appointed attorney; continuation of guardian ad litem or defense counsel; independence coordinator; duties; notice; court appointed special advocate volunteer.

(1) If desired by the young adult, the young adult shall be provided a court-appointed attorney who has received training appropriate to the role. The attorney's representation of the young adult shall be client-directed. The attorney shall protect the young adult's legal rights and vigorously advocate for the young adult's wishes and goals, including assisting the young adult as necessary to ensure that the bridge to independence program is providing the young adult with the services and support required under the Young Adult Bridge to Independence Act. For young adults who were appointed a guardian ad litem or defense counsel before the young adult attained the age of eligibility, the guardian ad litem's or defense counsel's appointment may be continued, with consent from the young adult, but under a client-directed model of representation. Before entering into a voluntary services and support agreement and at least sixty days prior to each permanency and case review, the independence coordinator shall notify the young adult of his or her right to request a client-directed attorney if the young adult would like an attorney to be appointed and shall provide the young adult with a clear and developmentally appropriate written notice regarding the young adult's right to request a client-directed attorney, the benefits and role of such attorney, and the specific steps to take to request that an attorney be appointed if the young adult would like an attorney appointed.

(2) The court has discretion to appoint a court appointed special advocate volunteer or continue the appointment of a previously appointed court appointed special advocate volunteer with the consent of the young adult.

Source:Laws 2013, LB216, § 10; Laws 2014, LB853, § 40; Laws 2020, LB848, § 6; Laws 2023, LB50, § 29.

43-4511. Extended guardianship assistance and medical care; eligibility; use.

(1) The department shall provide extended guardianship assistance and medical care under the medical assistance program for a young adult who has attained the age of eligibility but is less than twenty-one years of age and with respect to whom a kinship guardianship assistance agreement was in effect pursuant to 42 U.S.C. 673 if the young adult had attained sixteen years of age before the agreement became effective or with respect to whom a state-funded guardianship assistance agreement was in effect if the young adult had attained sixteen years of age before the agreement became effective and if the young adult meets at least one of the following conditions for eligibility:

(a) The young adult is completing secondary education or an educational program leading to an equivalent credential;

(b) The young adult is enrolled in an institution that provides postsecondary or vocational education;

(d) The young adult is participating in a program or activity designed to promote employment or remove barriers to employment; or

(e) The young adult is incapable of doing any part of the activities in subdivisions (1)(a) through (d) of this section due to a medical condition, which incapacity must be supported by regularly updated information in the case plan of the young adult.

(2) The guardian shall ensure that any guardianship assistance funds provided by the department and received by the guardian shall be used for the benefit of the young adult. The department shall adopt and promulgate rules and regulations defining services and supports encompassed by such benefit.

(3) The changes made to this section by Laws 2015, LB243, become operative on July 1, 2015.

Source:Laws 2013, LB216, § 11; Laws 2014, LB853, § 41; Laws 2015, LB243, § 20; Laws 2020, LB848, § 7.

43-4511.01. Participation in extended guardianship or bridge to independence program; participation in extended adoption assistance or bridge to independence program; choice of participant; notice; contents; department; duties.

(1)(a) Young adults who are eligible to participate under both extended guardianship assistance as provided in section 43-4511 and the bridge to independence program as provided in subdivision (2)(b)(ii) of section 43-4504 may choose to participate in either program.

(b) Young adults who are eligible to participate under both extended adoption assistance as provided in section 43-4512 and the bridge to independence program as provided in subdivision (2)(b)(ii) of section 43-4504 may choose to participate in either program.

(2) The department shall create a clear and developmentally appropriate written notice discussing the rights of young adults who are eligible under both extended guardianship assistance and the bridge to independence program and a notice for young adults who are eligible under both extended adoption assistance and the bridge to independence program. The notice shall explain the benefits and responsibilities and the process to apply. The department shall provide the written notice and make efforts to provide a verbal explanation to a young adult with respect to whom a kinship guardianship assistance agreement or an adoption assistance agreement was in effect pursuant to 42 U.S.C. 673 if the young adult had attained sixteen years of age before the agreement became effective or with respect to whom a state-funded guardianship assistance agreement or state-funded adoption assistance agreement was in effect if the young adult had attained sixteen years of age before the agreement became effective. The department shall provide the notice yearly thereafter until such young adult reaches nineteen years of age and not later than ninety days prior to the young adult attaining nineteen years of age.

Source:Laws 2015, LB243, § 21; Laws 2019, LB600, § 13; Laws 2023, LB50, § 30.

43-4512. Extended adoption assistance and medical care; eligibility; use.

(1) The department shall provide extended adoption assistance and medical care under the medical assistance program for a young adult who has attained the age of eligibility but is less than twenty-one years of age and with respect to whom an adoption assistance agreement was in effect if the young adult had attained sixteen years of age before the agreement became effective and who meets at least one of the following conditions of eligibility:

(a) The young adult is completing secondary education or an educational program leading to an equivalent credential;

(b) The young adult is enrolled in an institution that provides postsecondary or vocational education;

(d) The young adult is participating in a program or activity designed to promote employment or remove barriers to employment; or

(2) The adoptive parent or parents shall ensure that any adoption assistance funds provided by the department and received by the adoptive parent shall be used for the benefit of the young adult. The department shall adopt and promulgate rules and regulations defining services and supports encompassed by such benefit.

Source:Laws 2013, LB216, § 12; Laws 2014, LB853, § 42; Laws 2015, LB243, § 22; Laws 2020, LB848, § 8.

43-4513. Bridge to Independence Advisory Committee; created; members; terms; duties; report; contents.

(1) The Bridge to Independence Advisory Committee is created within the Nebraska Children's Commission to advise and make recommendations to the Legislature and the Nebraska Children's Commission regarding ongoing implementation of the bridge to independence program, extended guardianship assistance described in section 43-4511, and extended adoption assistance described in section 43-4512. The Bridge to Independence Advisory Committee shall provide a written report regarding ongoing implementation, including participation in the bridge to independence program, extended guardianship assistance described in section 43-4511, and extended adoption assistance described in section 43-4512 and early discharge rates and reasons obtained from the department, to the Nebraska Children's Commission, the Health and Human Services Committee of the Legislature, the department, and the Governor by September 1 of each year. The report to the Health and Human Services Committee of the Legislature shall be submitted electronically.

(2) The members of the Bridge to Independence Advisory Committee shall include, but not be limited to, (a) representatives from all three branches of government, and the representatives from the legislative and judicial branches of government shall be nonvoting, ex officio members, (b) no less than three young adults currently or previously in foster care, which may be filled on a rotating basis by members of Project Everlast or a similar youth support or advocacy group, (c) one or more representatives from a child welfare advocacy organization, (d) one or more representatives from a child welfare service agency, and (e) one or more representatives from an agency providing independent living services.

(3) Members of the committee shall be appointed for terms of two years. The Nebraska Children's Commission shall appoint the chairperson of the committee and may fill vacancies on the committee as they occur.

Source:Laws 2013, LB216, § 13; Laws 2014, LB853, § 43; Laws 2015, LB243, § 23; Laws 2018, LB732, § 4; Laws 2019, LB600, § 14.

43-4514. Department; submit amended state plan amendment to seek federal funding; department; duties; rules and regulations; references to United States Code; how construed.

(1) The department shall submit an amended state plan amendment by October 1, 2023, to seek federal Title IV-E funding under 42 U.S.C. 672 for any newly eligible young adult who was adjudicated to be a juvenile described in subdivision (1), (2), or (3)(b) of section 43-247 and who meets the requirements under subdivision (2)(c) of section 43-4504.

(2) The department shall implement the bridge to independence program, extended guardianship assistance described in section 43-4511, and extended adoption assistance described in section 43-4512 in accordance with the federal Fostering Connections to Success and Increasing Adoptions Act of 2008, 42 U.S.C. 673 and 42 U.S.C. 675(8)(B) and in accordance with requirements necessary to obtain federal Title IV-E funding under 42 U.S.C. 672 and 42 U.S.C. 673.

(3) The department shall adopt and promulgate rules and regulations as needed to carry out this section by July 1, 2024.

(4) All references to the United States Code in the Young Adult Bridge to Independence Act refer to sections of the code as such sections existed on January 1, 2015.

Source:Laws 2013, LB216, § 14; Laws 2014, LB853, § 44; Laws 2015, LB243, § 24; Laws 2019, LB600, § 15; Laws 2023, LB50, § 31.

43-4601. Act, how cited.

Sections 43-4601 to 43-4630 shall be known and may be cited as the Uniform Deployed Parents Custody and Visitation Act.

Source:Laws 2015, LB219, § 1.

43-4602. Terms, defined.

In the Uniform Deployed Parents Custody and Visitation Act:

(1) Adult means an individual who has attained nineteen years of age or an emancipated minor;

(2) Caretaking authority means the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation;

(3) Child means:

(A) an unemancipated individual who has not attained nineteen years of age; or

(B) an adult son or daughter by birth or adoption, or under law of this state other than the act, who is the subject of a court order concerning custodial responsibility;

(4) Court means a tribunal, including an administrative agency, authorized under law of this state other than the act to make, enforce, or modify a decision regarding custodial responsibility;

(5) Custodial responsibility includes all powers and duties relating to caretaking authority and decisionmaking authority for a child. The term includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child;

(6) Decisionmaking authority means the power to make important decisions regarding a child, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority;

(7) Deploying parent means a service member, who is deployed or has been notified of impending deployment, and is:

(A) a parent of a child under law of this state other than the act; or

(B) an individual who has custodial responsibility for a child under law of this state other than the act;

(8) Deployment means the movement or mobilization of a service member for more than ninety days but less than eighteen months pursuant to uniformed service orders that:

(A) are designated as unaccompanied;

(B) do not authorize dependent travel; or

(9) Family member means a sibling, aunt, uncle, cousin, stepparent, or grandparent of a child or an individual recognized to be in a familial relationship with a child under law of this state other than the act;

(10) Limited contact means the authority of a nonparent to visit a child for a limited time. The term includes authority to take the child to a place other than the residence of the child;

(11) Nonparent means an individual other than a deploying parent or other parent;

(12) Other parent means an individual who, in common with a deploying parent, is:

(A) a parent of a child under law of this state other than the act; or

(B) an individual who has custodial responsibility for a child under law of this state other than the act;

(13) Record means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(14) Return from deployment means the conclusion of a service member's deployment as specified in uniformed service orders;

(15) Service member means a member of a uniformed service;

(16) Sign means, with present intent to authenticate or adopt a record:

(A) to execute or adopt a tangible symbol; or

(B) to attach to or logically associate with the record an electronic symbol, sound, or process;

(17) State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and

(18) Uniformed service means:

(A) active and reserve components of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States;

(B) the United States Merchant Marine;

(D) the commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or

(E) the National Guard of a state.

Source:Laws 2015, LB219, § 2.

43-4603. Remedies for noncompliance.

In addition to other remedies under the law of this state other than the Uniform Deployed Parents Custody and Visitation Act, if a court finds that a party to a proceeding under the act has acted in bad faith or intentionally failed to comply with the act or a court order issued under the act, the court may assess reasonable attorney's fees and costs against the party and order other appropriate relief.

Source:Laws 2015, LB219, § 3.

43-4604. Jurisdiction.

(a) A court may issue an order regarding custodial responsibility under the Uniform Deployed Parents Custody and Visitation Act only if the court has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.

(b) If a court has issued a temporary order regarding custodial responsibility pursuant to sections 43-4613 to 43-4623, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act during the deployment.

(c) If a court has issued a permanent order regarding custodial responsibility before notice of deployment and the parents modify that order temporarily by agreement pursuant to sections 43-4608 to 43-4612, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.

(d) If a court in another state has issued a temporary order regarding custodial responsibility as a result of impending or current deployment, the residence of the deploying parent is not changed by reason of the deployment for the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.

(e) This section does not prevent a court from exercising temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.

Source:Laws 2015, LB219, § 4.

Cross References

Uniform Child Custody Jurisdiction and Enforcement Act, see section 43-1226.

43-4605. Notification required of deploying parent.

(a) Except as otherwise provided in subsection (d) of this section and subject to subsection (c) of this section, a deploying parent shall notify in a record the other parent of a pending deployment not later than seven days after receiving notice of deployment unless reasonably prevented from doing so by the circumstances of service. If the circumstances of service prevent giving notification within the seven days, the deploying parent shall give the notification as soon as reasonably possible.

(b) Except as otherwise provided in subsection (d) of this section and subject to subsection (c) of this section, each parent shall provide in a record the other parent with a plan for fulfilling that parent's share of custodial responsibility during deployment. Each parent shall provide the plan as soon as reasonably possible after notification of deployment is given under subsection (a) of this section.

(c) If a court order currently in effect prohibits disclosure of the address or contact information of the other parent, notification of deployment under subsection (a) of this section, or notification of a plan for custodial responsibility during deployment under subsection (b) of this section, may be made only to the issuing court. If the address of the other parent is available to the issuing court, the court shall forward the notification to the other parent. The court shall keep confidential the address or contact information of the other parent.

(d) Notification in a record under subsection (a) or (b) of this section is not required if the parents are living in the same residence and both parents have actual notice of the deployment or plan.

(e) In a proceeding regarding custodial responsibility, a court may consider the reasonableness of a parent's efforts to comply with this section.

Source:Laws 2015, LB219, § 5.

43-4606. Duty to notify of change of address.

(a) Except as otherwise provided in subsection (b) of this section, an individual to whom custodial responsibility has been granted during deployment pursuant to sections 43-4608 to 43-4612 or 43-4613 to 43-4623 shall notify the deploying parent and any other individual with custodial responsibility of a child of any change of the individual's mailing address or residence until the grant is terminated. The individual shall provide the notice to any court that has issued a custody or child support order concerning the child which is in effect.

(b) If a court order currently in effect prohibits disclosure of the address or contact information of an individual to whom custodial responsibility has been granted, a notification under subsection (a) of this section may be made only to the court that issued the order. The court shall keep confidential the mailing address or residence of the individual to whom custodial responsibility has been granted.

Source:Laws 2015, LB219, § 6.

43-4607. General consideration in custody proceeding of parent's military service.

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent's past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent's past or possible future deployment.

Source:Laws 2015, LB219, § 7.

43-4608. Form of agreement.

(a) The parents of a child may enter into a temporary agreement under sections 43-4608 to 43-4612 granting custodial responsibility during deployment.

(b) An agreement under subsection (a) of this section must be:

(1) in writing; and

(2) signed by both parents and any nonparent to whom custodial responsibility is granted.

(1) identify the destination, duration, and conditions of the deployment that is the basis for the agreement;

(2) specify the allocation of caretaking authority among the deploying parent, the other parent, and any nonparent;

(3) specify any decisionmaking authority that accompanies a grant of caretaking authority;

(4) specify any grant of limited contact to a nonparent;

(5) if under the agreement custodial responsibility is shared by the other parent and a nonparent, or by other nonparents, provide a process to resolve any dispute that may arise;

(6) specify the frequency, duration, and means, including electronic means, by which the deploying parent will have contact with the child, any role to be played by the other parent in facilitating the contact, and the allocation of any costs of contact;

(7) specify the contact between the deploying parent and child during the time the deploying parent is on leave or is otherwise available;

(8) acknowledge that any party's child-support obligation cannot be modified by the agreement, and that changing the terms of the obligation during deployment requires modification in the appropriate court;

(9) provide that the agreement will terminate according to the procedures under sections 43-4624 to 43-4627 after the deploying parent returns from deployment; and

(10) if the agreement must be filed pursuant to section 43-4612, specify which parent is required to file the agreement.

(d) The omission of any of the items specified in subsection (c) of this section does not invalidate an agreement under this section.

Source:Laws 2015, LB219, § 8.

43-4609. Nature of authority created by agreement.

(a) An agreement under sections 43-4608 to 43-4612 is temporary and terminates pursuant to sections 43-4624 to 43-4627 after the deploying parent returns from deployment, unless the agreement has been terminated before that time by court order or modification under section 43-4610. The agreement does not create an independent, continuing right to caretaking authority, decisionmaking authority, or limited contact in an individual to whom custodial responsibility is given.

(b) A nonparent who has caretaking authority, decisionmaking authority, or limited contact by an agreement under sections 43-4608 to 43-4612 has standing to enforce the agreement until it has been terminated by court order, by modification under section 43-4610, or under sections 43-4624 to 43-4627.

Source:Laws 2015, LB219, § 9.

43-4610. Modification of agreement.

(a) By mutual consent, the parents of a child may modify an agreement regarding custodial responsibility made pursuant to sections 43-4608 to 43-4612.

(b) If an agreement is modified under subsection (a) of this section before deployment of a deploying parent, the modification must be in writing and signed by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.

(c) If an agreement is modified under subsection (a) of this section during deployment of a deploying parent, the modification must be agreed to in a record by both parents and any nonparent who will exercise custodial responsibility under the modified agreement.

Source:Laws 2015, LB219, § 10.

43-4611. Power of attorney.

A deploying parent, by power of attorney, may delegate all or part of custodial responsibility to an adult nonparent for the period of deployment if no other parent possesses custodial responsibility under law of this state other than the Uniform Deployed Parents Custody and Visitation Act, or if a court order currently in effect prohibits contact between the child and the other parent. The deploying parent may revoke the power of attorney by signing a revocation of the power.

Source:Laws 2015, LB219, § 11.

43-4612. Filing agreement or power of attorney with court.

An agreement or power of attorney under sections 43-4608 to 43-4612 must be filed within a reasonable time with any court that has entered an order on custodial responsibility or child support that is in effect concerning the child who is the subject of the agreement or power. The case number and heading of the pending case concerning custodial responsibility or child support must be provided to the court with the agreement or power.

Source:Laws 2015, LB219, § 12.

43-4613. Close and substantial relationship, defined.

In sections 43-4613 to 43-4623, close and substantial relationship means a relationship in which a significant bond exists between a child and a nonparent.

Source:Laws 2015, LB219, § 13.

43-4614. Proceeding for temporary custody order.

(a) After a deploying parent receives notice of deployment and until the deployment terminates, a court may issue a temporary order granting custodial responsibility unless prohibited by the Servicemembers Civil Relief Act, 50 U.S.C. appendix sections 521 and 522, as the act exists on January 1, 2015. A court may not issue a permanent order granting custodial responsibility without the consent of the deploying parent.

(b) At any time after a deploying parent receives notice of deployment, either parent may file a motion regarding custodial responsibility of a child during deployment. The motion must be filed in a pending proceeding for custodial responsibility in a court with jurisdiction under section 43-4604 or, if there is no pending proceeding in a court with jurisdiction under section 43-4604, in a new action for granting custodial responsibility during deployment.

Source:Laws 2015, LB219, § 14.

43-4615. Expedited hearing.

If a motion to grant custodial responsibility is filed under subsection (b) of section 43-4614 before a deploying parent deploys, the court shall conduct an expedited hearing.

Source:Laws 2015, LB219, § 15.

43-4616. Testimony by electronic means.

In a proceeding under sections 43-4613 to 43-4623, a party or witness who is not reasonably available to appear personally may appear, provide testimony, and present evidence by electronic means unless the court finds good cause to require a personal appearance.

Source:Laws 2015, LB219, § 16.

43-4617. Effect of prior judicial order or agreement.

In a proceeding for a grant of custodial responsibility pursuant to sections 43-4613 to 43-4623, the following rules apply:

(1) A prior judicial order designating custodial responsibility in the event of deployment is binding on the court unless the circumstances meet the requirements of law of this state other than the Uniform Deployed Parents Custody and Visitation Act for modifying a judicial order regarding custodial responsibility.

(2) The court shall enforce a prior written agreement between the parents for designating custodial responsibility in the event of deployment, including an agreement executed under sections 43-4608 to 43-4612, unless the court finds that the agreement is contrary to the best interest of the child.

Source:Laws 2015, LB219, § 17.

43-4618. Grant of caretaking or decisionmaking authority to nonparent.

(a) On a motion of a deploying parent and in accordance with the laws of this state, other than the Uniform Deployed Parents Custody and Visitation Act, if it is in the best interests of the child, a court may grant caretaking authority to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. The court shall consider the following factors as related to the best interests of the child:

(1) The emotional, physical, and developmental needs of the minor child;

(2) The minor child's opinion or preference;

(3) The level of involvement and the extent of predeployment parenting responsibility exercised by the nonparent;

(4) The quality of the relationship between the minor child and the nonparent;

(5) The strength of the minor child's ties to the nonparent;

(6) The extent to which the delegation would interfere or support the minor child's existing school, sports, and extracurricular activities;

(7) The age, maturity, and living conditions of the nonparent; and

(8) The likelihood that allowing the delegation would increase or decrease the hostilities between the parties involved.

(b) Unless a grant of caretaking authority to a nonparent under subsection (a) of this section is agreed to by the other parent, the grant is limited to an amount of time not greater than:

(1) the amount of time granted to the deploying parent under a permanent custody order, but the court may add unusual travel time necessary to transport the child; or

(2) in the absence of a permanent custody order that is currently in effect, the amount of time that the deploying parent habitually cared for the child before being notified of deployment, but the court may add unusual travel time necessary to transport the child.

(c) A court may grant part of a deploying parent's decisionmaking authority, if the deploying parent is unable to exercise that authority, to a nonparent who is an adult family member of the child or an adult with whom the child has a close and substantial relationship. If a court grants the authority to a nonparent, the court shall specify the decisionmaking powers granted, including decisions regarding the child's education, religious training, health care, extracurricular activities, and travel.

Source:Laws 2015, LB219, § 18.

43-4619. Grant of limited contact.

On motion of a deploying parent, and in accordance with the law of this state other than the Uniform Deployed Parents Custody and Visitation Act, unless the court finds that the contact would be contrary to the best interest of the child, a court shall grant limited contact to a nonparent who is a family member of the child or an individual with whom the child has a close and substantial relationship.

Source:Laws 2015, LB219, § 19.

43-4620. Nature of authority created by temporary custody order.

(a) A grant of authority under sections 43-4613 to 43-4623 is temporary and terminates under sections 43-4624 to 43-4627 after the return from deployment of the deploying parent, unless the grant has been terminated before that time by court order. The grant does not create an independent, continuing right to caretaking authority, decisionmaking authority, or limited contact in an individual to whom it is granted.

(b) A nonparent granted caretaking authority, decisionmaking authority, or limited contact under sections 43-4613 to 43-4623 has standing to enforce the grant until it is terminated by court order or under sections 43-4624 to 43-4627.

Source:Laws 2015, LB219, § 20.

43-4621. Content of temporary custody order.

(a) An order granting custodial responsibility under sections 43-4613 to 43-4623 must:

(1) designate the order as temporary; and

(2) identify to the extent feasible the destination, duration, and conditions of the deployment.

(b) If applicable, an order for custodial responsibility under sections 43-4613 to 43-4623 must:

(1) specify the allocation of caretaking authority, decisionmaking authority, or limited contact among the deploying parent, the other parent, and any nonparent;

(2) if the order divides caretaking or decisionmaking authority between individuals, or grants caretaking authority to one individual and limited contact to another, provide a process to resolve any dispute that may arise;

(3) provide for liberal communication between the deploying parent and the child during deployment, including through electronic means, unless contrary to the best interest of the child, and allocate any costs of communications;

(4) provide for liberal contact between the deploying parent and the child during the time the deploying parent is on leave or otherwise available, unless contrary to the best interest of the child;

(5) provide for reasonable contact between the deploying parent and the child after return from deployment until the temporary order is terminated, even if the time of contact exceeds the time the deploying parent spent with the child before entry of the temporary order; and

(6) provide that the order will terminate pursuant to sections 43-4624 to 43-4627 after the deploying parent returns from deployment.

Source:Laws 2015, LB219, § 21.

43-4622. Order for child support.

If a court has issued an order granting caretaking authority under sections 43-4613 to 43-4623, or an agreement granting caretaking authority has been executed under sections 43-4608 to 43-4612, the court may enter a temporary order for child support consistent with law of this state other than the Uniform Deployed Parents Custody and Visitation Act if the court has jurisdiction under the Uniform Interstate Family Support Act.

Source:Laws 2015, LB219, § 22.

Cross References

Uniform Interstate Family Support Act, see section 42-701.

43-4623. Modifying or terminating grant of custodial responsibility to nonparent.

(a) Except for an order under section 43-4617, except as otherwise provided in subsection (b) of this section, and consistent with the Servicemembers Civil Relief Act, 50 U.S.C. appendix sections 521 and 522, as the act exists on January 1, 2015, on motion of a deploying or other parent or any nonparent to whom caretaking authority, decisionmaking authority, or limited contact has been granted, the court may modify or terminate the grant if the modification or termination is consistent with sections 43-4613 to 43-4623 and it is in the best interest of the child. A modification is temporary and terminates pursuant to sections 43-4624 to 43-4627 after the deploying parent returns from deployment, unless the grant has been terminated before that time by court order.

(b) On motion of a deploying parent, the court shall terminate a grant of limited contact.

Source:Laws 2015, LB219, § 23.

43-4624. Procedure for terminating temporary grant of custodial responsibility established by agreement.

(a) At any time after return from deployment, a temporary agreement granting custodial responsibility under sections 43-4608 to 43-4612 may be terminated by an agreement to terminate signed by the deploying parent and the other parent.

(b) A temporary agreement under sections 43-4608 to 43-4612 granting custodial responsibility terminates:

(1) if an agreement to terminate under subsection (a) of this section specifies a date for termination, on that date; or

(2) if the agreement to terminate does not specify a date, on the date the agreement to terminate is signed by the deploying parent and the other parent.

(c) In the absence of an agreement under subsection (a) of this section to terminate, a temporary agreement granting custodial responsibility terminates under sections 43-4608 to 43-4612 sixty days after the deploying parent gives notice to the other parent that the deploying parent has returned from deployment.

(d) If a temporary agreement granting custodial responsibility was filed with a court pursuant to section 43-4612, an agreement to terminate the temporary agreement also must be filed with that court within a reasonable time after the signing of the agreement. The case number and heading of the case concerning custodial responsibility or child support must be provided to the court with the agreement to terminate.

Source:Laws 2015, LB219, § 24.

43-4625. Consent procedure for terminating temporary grant of custodial responsibility established by court order.

At any time after a deploying parent returns from deployment, the deploying parent and the other parent may file with the court an agreement to terminate a temporary order for custodial responsibility issued under sections 43-4613 to 43-4623. After an agreement has been filed, the court shall issue an order terminating the temporary order effective on the date specified in the agreement. If a date is not specified, the order is effective immediately.

Source:Laws 2015, LB219, § 25.

43-4626. Visitation before termination of temporary grant of custodial responsibility.

After a deploying parent returns from deployment until a temporary agreement or order for custodial responsibility established under sections 43-4608 to 43-4612 or 43-4613 to 43-4623 is terminated, the court shall issue a temporary order granting the deploying parent reasonable contact with the child unless it is contrary to the best interest of the child, even if the time of contact exceeds the time the deploying parent spent with the child before deployment.

Source:Laws 2015, LB219, § 26.

43-4627. Termination by operation of law of temporary grant of custodial responsibility established by court order.

(a) If an agreement between the parties to terminate a temporary order for custodial responsibility under sections 43-4613 to 43-4623 has not been filed, the order terminates sixty days after the deploying parent gives notice to the other parent and any nonparent granted custodial responsibility that the deploying parent has returned from deployment.

(b) A proceeding seeking to prevent termination of a temporary order for custodial responsibility is governed by law of this state other than the Uniform Deployed Parents Custody and Visitation Act.

Source:Laws 2015, LB219, § 27.

43-4628. Uniformity of application and construction.

In applying and construing the Uniform Deployed Parents Custody and Visitation Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:Laws 2015, LB219, § 28.

43-4629. Relation to Electronic Signatures in Global and National Commerce Act.

The Uniform Deployed Parents Custody and Visitation Act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but does not modify, limit, or supersede section 101(c) of that act, 15 U.S.C. 7001(c), or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. 7003(b).

Source:Laws 2015, LB219, § 29.

43-4630. Savings clause.

The Uniform Deployed Parents Custody and Visitation Act does not affect the validity of a temporary court order concerning custodial responsibility during deployment which was entered before January 1, 2016.

Source:Laws 2015, LB219, § 30.

43-4701. Act, how cited.

Sections 43-4701 to 43-4716 shall be known and may be cited as the Nebraska Strengthening Families Act.

Source:Laws 2016, LB746, § 1; Laws 2017, LB225, § 8; Laws 2019, LB600, § 16.

43-4702. Legislative findings and intent.

The Legislature finds that every day a parent makes important decisions about his or her child’s participation in activities and that a caregiver for a child in out-of-home care is faced with making the same decisions for a child in his or her care.

The Legislature also finds that, when a caregiver makes decisions, he or she must consider applicable laws, rules, and regulations to safeguard the health and safety of a child in out-of-home care and that those laws, rules, and regulations have commonly been interpreted to prohibit children in out-of-home care from participating in extracurricular, enrichment, cultural, and social activities.

The Legislature further finds that participation in these types of activities is important to a child’s well-being, not only emotionally, but in developing valuable life skills.

It is the intent of the Legislature to recognize the importance of parental rights and the different rights that exist dependent on a variety of factors, including the age and maturity of the child, the status of the case, and the child’s placement.

It is the intent of the Legislature to recognize the importance of race, culture, and identity for children in out-of-home care.

It is the intent of the Legislature to recognize the importance of making every effort to normalize the lives of children in out-of-home care and to empower a caregiver to approve or disapprove a child’s participation in activities based on the caregiver’s own assessment using a reasonable and prudent parent standard.

It is the intent of the Legislature to implement the federal Preventing Sex Trafficking and Strengthening Families Act, Public Law 113-183, as such act existed on January 1, 2016.

Source:Laws 2016, LB746, § 2; Laws 2017, LB225, § 9.

43-4703. Terms, defined.

For purposes of the Nebraska Strengthening Families Act:

(1) Age or developmentally appropriate means activities or items that are generally accepted as suitable for a child of the same chronological age or level of maturity or that are determined to be developmentally appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group and, in the case of a specific child, activities or items that are suitable for the child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the child;

(2) Caregiver means a foster parent with whom a child in foster care has been placed or a designated official for a child-care institution in which a child in foster care has been placed;

(3) Child-care institution has the definition found in 42 U.S.C. 672(c), as such section existed on January 1, 2016, and also includes the definition of residential child-caring agency as found in section 71-1926;

(4) Department means the Department of Health and Human Services;

(5) Foster family home has the definition found in 42 U.S.C. 672(c), as such section existed on January 1, 2017, and also includes the definition as found in section 71-1901;

(6) Probation means the Office of Probation Administration; and

(7) Reasonable and prudent parent standard means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interest of a child while at the same time encouraging the emotional and developmental growth of the child that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the state to participate in extracurricular, enrichment, cultural, and social activities.

Source:Laws 2016, LB746, § 3; Laws 2017, LB225, § 10.

43-4704. Rights of child; requirements for a driver's license.

(1) Every child placed by the department in a foster family home or child-care institution shall be entitled to access to reasonable opportunities to participate in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities.

(2) A child in foster care shall not be required, by virtue of his or her status as a child in foster care, to meet any more requirements for a driver's license under the Motor Vehicle Operator's License Act than any other child applying for the same license.

Source:Laws 2016, LB746, § 4; Laws 2017, LB225, § 11; Laws 2020, LB219, § 2.

Cross References

Motor Vehicle Operator's License Act, see section 60-462.

43-4705. Caregiver; use reasonable and prudent parent standard; considerations.

Each caregiver shall use the reasonable and prudent parent standard in determining whether to give permission for a child to participate in extracurricular, enrichment, cultural, and social activities. When using the reasonable and prudent parent standard, the caregiver shall consider:

(1) The child’s goals and input;

(2) To the extent possible, the input of the parent of the child;

(3) The child’s age, maturity, and developmental level to maintain the overall health and safety of the child;

(4) The potential risk factors and the appropriateness of the extracurricular, enrichment, cultural, or social activity;

(5) The best interests of the child, based on information known by the caregiver;

(6) The importance of encouraging the child’s emotional and developmental growth;

(7) The importance of providing the child with the most family-like living experience possible;

(8) The behavioral history of the child and the child’s ability to safely participate in the proposed activity;

(9) The child’s personal and cultural identity; and

(10) The individualized needs of the child.

Source:Laws 2016, LB746, § 5.

43-4706. Department; duties; contract requirements; caregiver; duties; written notice posted; normalcy plan; contents; normalcy report; contents.

(1) The department shall ensure that each foster family home and child-care institution has policies consistent with this section and that such foster family home and child-care institution promote and protect the ability of children to participate in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities.

(2) A caregiver shall use a reasonable and prudent parent standard in determining whether to give permission for a child to participate in extracurricular, enrichment, cultural, and social activities. The caregiver shall take reasonable steps to determine the appropriateness of the activity in consideration of the child’s age, maturity, and developmental level.

(3) The department shall require, as a condition of each contract entered into by a child-care institution to provide foster care, the presence onsite of at least one official who, with respect to any child placed at the child-care institution, is designated to be the caregiver who is (a) authorized to apply the reasonable and prudent parent standard to decisions involving the participation of the child in age or developmentally appropriate activities, (b) provided with training in how to use and apply the reasonable and prudent parent standard in the same manner as foster parents are provided training in section 43-4707, and (c) required to consult whenever possible with the child and staff members identified by the child in applying the reasonable and prudent parent standard.

(4) The department shall also require, as a condition of each contract entered into by a child-care institution to provide foster care, that all children placed at the child-care institution be notified verbally and in writing, in an age or developmentally appropriate manner, of the process for making a request to participate in age or developmentally appropriate activities and that a written notice of this process be posted in an accessible, public place in the child-care institution.

(5)(a) The department shall also require, as a condition of each contract entered into by a child-care institution to provide foster care, a written normalcy plan describing how the child-care institution will ensure that all children have access to age or developmentally appropriate activities to be filed with the department and a normalcy report regarding the implementation of the normalcy plan to be filed with the department annually by June 30. Such plans and reports shall not be required to be provided by child-care institutions physically located outside the State of Nebraska or psychiatric residential treatment facilities.

(b) The normalcy plan shall specifically address:

(i) Efforts to address barriers to normalcy that are inherent in a child-care institution setting;

(ii) Normalcy efforts for all children placed at the child-care institution, including, but not limited to, relationships with family, age or developmentally appropriate access to technology and technological skills, education and school stability, access to health care and information, and access to a sustainable and durable routine;

(iii) Procedures for developing goals and action steps in the child-care institution’s case plan and case planning process related to participation in age or developmentally appropriate activities for each child placed at the child-care institution;

(iv) Policies on staffing, supervision, permission, and consent to age or developmentally appropriate activities consistent with the reasonable and prudent parent standard;

(v) A list of activities that the child-care institution provides onsite and a list of activities in the community regarding which the child-care institution will make children aware, promote, and support access;

(vi) Identified accommodations and support services so that children with disabilities and special needs can participate in age or developmentally appropriate activities to the same extent as their peers;

(vii) The individualized needs of all children involved in the system;

(viii) Efforts to reduce disproportionate impact of the system and services on families and children of color and other populations; and

(ix) Efforts to develop a youth board to assist in implementing the reasonable and prudent parent standard in the child-care institution and promoting and supporting normalcy.

(i) Compliance with each of the plan requirements set forth in subdivisions (b)(i) through (ix) of this subsection; and

(ii) Compliance with subsections (3) and (4) of this section.

(6) The department shall make normalcy plans and reports received from contracting child-care institutions pursuant to subsection (5) of this section and plans and reports from all youth rehabilitation and treatment centers pursuant to subsection (7) of this section available upon request to the Nebraska Strengthening Families Act Committee, the Nebraska Children's Commission, probation, the Governor, and electronically to the Health and Human Services Committee of the Legislature, by September 1 of each year.

(7) All youth rehabilitation and treatment centers shall meet the requirements of subsection (5) of this section.

Source:Laws 2016, LB746, § 6; Laws 2017, LB225, § 12.

43-4707. Training for foster parents.

The department shall adopt and promulgate rules and regulations regarding training for foster parents so that foster parents will be prepared adequately with the appropriate knowledge and skills relating to the reasonable and prudent parent standard for the participation of the child in age or developmentally appropriate activities, including knowledge and skills relating to the developmental stages of the cognitive, emotional, physical, and behavioral capacities of the child and knowledge and skills related to applying the standard to decisions such as whether to allow the child to engage in extracurricular, enrichment, cultural, and social activities, including sports, field trips, and overnight activities lasting one or more days and to decisions involving the signing of permission slips and arranging of transportation for the child to and from extracurricular, enrichment, cultural, and social activities. The department shall also adopt and promulgate rules and regulations regarding training for foster parents on recognizing human trafficking, including both sex trafficking and labor trafficking.

Source:Laws 2016, LB746, § 7; Laws 2017, LB225, § 13.

43-4708. Caregiver; liability.

A caregiver is not liable for harm caused to a child who participates in an activity approved by the caregiver or by a child who participates in an activity approved by a caregiver if the caregiver has acted in accordance with the reasonable and prudent parent standard. This section may not be interpreted as removing or limiting any existing liability protection afforded by law.

Source:Laws 2016, LB746, § 8.

43-4709. Parental rights; consultation with parent; documentation; family team meeting.

(1) Nothing in the Nebraska Strengthening Families Act or the application of the reasonable and prudent parent standard shall affect the parental rights of a parent whose parental rights have not been terminated pursuant to section 43-292 with respect to his or her child.

(2) To the extent possible, a parent shall be consulted about the child’s participation in age or developmentally appropriate activities in the planning process. The department shall document such consultation in the report filed pursuant to subsection (3) of section 43-285.

(3) The child’s participation in extracurricular, enrichment, cultural, and social activities shall be considered at any family team meeting.

Source:Laws 2016, LB746, § 9; Laws 2017, LB225, § 14.

43-4710. Department; report; contents.

The department shall document in the report pursuant to subsection (3) of section 43-285 the steps the department is taking to ensure that:

(1) The child’s caregiver is following the reasonable and prudent parent standard;

(2) The child has regular, ongoing opportunities to engage in age or developmentally appropriate activities;

(3) The department has consulted with the child in an age or developmentally appropriate manner about the opportunities of the child to participate in age or developmentally appropriate activities; and

(4) Any barriers to participation in age or developmentally appropriate activities are identified and addressed.

Source:Laws 2016, LB746, § 10.

43-4711. Juvenile court; determination; findings or orders.

(1) At every dispositional, review, or permanency planning hearing, the juvenile court shall make a determination regarding:

(a) The steps the department is taking to ensure the child’s foster family home or child-care institution is following the reasonable and prudent parent standard;

(b) Whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities; and

(c) Whether the department has consulted with the child in an age or developmentally appropriate manner about the opportunities of the child to participate in such activities.

(2) In making this determination, the juvenile court shall ask the child, in an age or developmentally appropriate manner, about his or her access to regular and ongoing opportunities to engage in age or developmentally appropriate activities. If the child, the guardian ad litem, the caregiver, or a party to the proceeding believes that the child has not had regular, ongoing opportunities to engage in such activities, the juvenile court may make appropriate findings or orders to ensure the child has regular, ongoing opportunities to engage in age and developmentally appropriate activities. In making such findings or orders, the court shall give deference to the caregiver in making decisions within the reasonable and prudent parent standard.

Source:Laws 2016, LB746, § 11.

43-4712. Department; courts; collaboration.

The department and the courts shall work collaboratively to remove or reduce barriers to a child’s participation in age or developmentally appropriate activities.

Source:Laws 2016, LB746, § 12.

43-4713. Plan for child; contents; document; copy to child; public posting by child-care institution.

(1) The plan as provided in subsection (2) of section 43-285 for any child in a foster family home or child-care institution who has attained fourteen years of age shall include:

(a) A document that describes the rights of the child with respect to education, health, visitation, and court participation, the right to be provided with a copy of any consumer report pursuant to 42 U.S.C. 675(5)(I), as such section existed on January 1, 2016, and the right to stay safe and avoid exploitation. The document shall also describe the right of the child to be provided documents relating to his or her education, health, visitation, court participation, and the right to stay safe and avoid exploitation. The document shall also describe additional rights of the child, including, but not limited to, the right to:

(i) Understand the system or systems in which the child is involved;

(ii) Have his or her voice heard in his or her case;

(iii) Maintain family connections;

(iv) Access personal information;

(v) Honest and clear communication;

(vi) Have his or her basic needs met;

(vii) Learn life skills needed to successfully transition to adulthood; and

(viii) Live in the most family-like setting that is safe, healthy, and comfortable and meets the child’s needs; and

(b) A signed acknowledgment by the child that the child has been provided with a copy of the document described in this section and that the rights contained in the document have been explained to the child in an age or developmentally appropriate manner.

(2) The document shall be provided to the child in a hard copy and offered to the child within seventy-two hours of being placed in a foster family home or child-care institution and at every dispositional, review, and permanency planning hearing.

(3) The department shall require, as a condition of each contract entered into by a child-care institution to provide foster care, that the child-care institution publicly post the document described in this section in an accessible location.

Source:Laws 2016, LB746, § 13.

43-4714. Rules and regulations.

The department shall adopt and promulgate rules and regulations to carry out the Nebraska Strengthening Families Act and shall revoke any rules or regulations inconsistent with the act by October 15, 2017.

Source:Laws 2016, LB746, § 14; Laws 2017, LB225, § 16.

43-4715. Missing child; department and probation; duties.

The department and probation shall establish procedures for the immediate dissemination of a current picture and information about a child who is missing from a foster care or out-of-home placement to appropriate third parties, which may include law enforcement agencies or persons engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public. Any information released to a third party under this section shall be subject to state and federal confidentiality laws and shall not include that the child is under the care, custody, or supervision of the department or under the supervision of probation. Such dissemination by probation shall be authorized by an order of a judge or court.

Source:Laws 2017, LB225, § 15.

43-4716. Nebraska Strengthening Families Act Committee; created; duties; members; term; vacancy; report; contents.

(1) The Nebraska Strengthening Families Act Committee is created.

(2) The Nebraska Strengthening Families Act Committee shall monitor and make recommendations regarding the implementation in Nebraska of the federal Preventing Sex Trafficking and Strengthening Families Act, Public Law 113-183, as such act existed on January 1, 2017, and the Nebraska Strengthening Families Act.

(3) The members of the committee shall include, but not be limited to, (a) representatives from the legislative, executive, and judicial branches of government. The representatives from the legislative and judicial branches shall be nonvoting, ex officio members, (b) no fewer than three young adults currently or previously in foster care which may be filled on a rotating basis by members of Project Everlast or a similar youth support or advocacy group, (c) a representative from the juvenile probation system, (d) the executive director of the Foster Care Review Office, (e) one or more representatives from a child welfare advocacy organization, (f) one or more representatives from a child welfare service agency, (g) one or more representatives from an agency providing independent living services, (h) one or more representatives of a child-care institution as defined in section 43-4703, (i) one or more current or former foster parents, (j) one or more parents who have experience in the foster care system, (k) one or more professionals who have relevant practical experience such as a caseworker, and (l) one or more guardians ad litem who practice in juvenile court.

(4) Members shall be appointed for terms of two years. The Nebraska Children's Commission shall appoint a chairperson or chairpersons of the committee and may fill vacancies on the committee as such vacancies occur.

(5) The committee shall provide a written report with recommendations regarding the initial and ongoing implementation of the federal Preventing Sex Trafficking and Strengthening Families Act, as such act existed on January 1, 2017, and the Nebraska Strengthening Families Act and related efforts to improve normalcy for children in foster care and related populations to the Nebraska Children's Commission, the Health and Human Services Committee of the Legislature, the Department of Health and Human Services, and the Governor by September 1 of each year. The report to the Health and Human Services Committee of the Legislature shall be submitted electronically.

Source:Laws 2016, LB746, § 23; Laws 2017, LB225, § 7; Laws 2018, LB732, § 3; R.S.Supp.,2018, § 43-4218; Laws 2019, LB600, § 17.

43-4801. Procedure.

Sections 43-4801 to 43-4812 provide a procedure for judicial emancipation of a minor.

Source:Laws 2018, LB714, § 1.

43-4802. Petition authorized.

A minor who is at least sixteen years of age, who is married or living apart from his or her parents or legal guardian, and who is a legal resident may file a petition in the district court of his or her county of residence for a judgment of emancipation. The petition shall be signed and verified by the minor.

Source:Laws 2018, LB714, § 2.

43-4803. Petition; contents.

A petition for emancipation filed pursuant to section 43-4802 shall state:

(1) The name, age, and address of the minor;

(2) The names and addresses of the parents of the minor, if known;

(3) The name and address of any legal guardian of the minor, if known;

(4) If the name or address of a parent or legal guardian is unknown, the name and address of the child’s nearest known relative residing within this state;

(5) Whether the minor is a party to or the subject of a pending judicial proceeding in this state or any other jurisdiction, or the subject of a judicial order of any description issued in connection with such pending judicial proceeding, if known;

(6) The state, county, and case number of any court case in which an order of support has been entered, if known;

(7) That the minor is seeking a judgment of emancipation;

(8) That the minor is filing the petition as a free and voluntary act; and

(9) Specific facts to support the petition, including:

(a) That the minor willingly lives apart from his or her parents or legal guardian;

(b) That the minor is able to support himself or herself without financial assistance, or, in the alternative, the minor has no parent, legal guardian, or custodian who is providing support;

(c) That the minor is mature and knowledgeable to manage his or her affairs without the guidance of a parent or legal guardian;

(d) That the minor has demonstrated an ability and commitment to obtain and maintain education, vocational training, or employment;

(e) The reasons why emancipation would be in the best interests of the minor; and

(f) The purposes for which emancipation is requested.

Source:Laws 2018, LB714, § 3.

43-4804. Hearing.

Upon the filing of a petition for emancipation, the court shall fix a time for a hearing on the petition. The hearing shall be held not less than forty-five days and not more than sixty days after the filing of such petition unless any party for good cause shown requests a continuance of the hearing or all parties agree to a continuance.

Source:Laws 2018, LB714, § 4.

43-4805. Notice; service.

(1) Upon filing a petition pursuant to section 43-4804, and at least thirty days prior to the hearing date, the petitioner shall serve a notice of filing, together with a copy of the petition for emancipation and a summons to appear at the hearing, upon:

(a) The parents or legal guardian of the minor or, if the parents or legal guardian cannot be found, the nearest known relative of the minor residing within the state, if any; and

(b) The legal custodian of the minor, if any.

(2) Service and summons shall be made in accordance with section 25-505.01.

(3) Upon a motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (a) by leaving the process at the party's usual place of residence and mailing a copy by first-class mail to the party's last-known address, (b) by publication, or (c) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard.

Source:Laws 2018, LB714, § 5.

43-4806. Summons to appear; service.

Upon filing the petition, a notice of filing, together with a copy of the petition for emancipation and a summons to appear at the hearing, shall be served:

(1)(a) Upon the parents or legal guardian of the minor or, if the parents or legal guardian cannot be found, the nearest known relative of the minor residing within the state, if any; and

(b) Upon the legal custodian of the minor, if any; or

(2) By publication pursuant to section 25-519, if service pursuant to subdivision (1) of this section is not possible.

Source:Laws 2018, LB714, § 6.

43-4807. Hearing on merits of petition.

The court shall hold a hearing on the merits of the petition no sooner than forty-five days after the date of filing but within sixty days after the date of its filing. The petitioner shall notify by certified mail the petitioner's parent or legal guardian or the petitioner’s nearest known relative residing within the state, whichever is given notice under section 43-4806, if any, and the petitioner’s legal custodian, if any, of the time, date, and place of the hearing at least thirty days prior to the hearing date. Proof of such notice shall be filed prior to the hearing on the petition. For good cause shown, the court may continue the initial emancipation hearing.

Source:Laws 2018, LB714, § 7.

43-4808. Objection to petition.

The minor's parent or legal guardian and the minor’s legal custodian may file an objection to the petition for emancipation within thirty days of service of the notice of the hearing.

Source:Laws 2018, LB714, § 8.

43-4809. Burden of proof; advisement by court; judgment of emancipation.

(1) The minor has the burden of proving by clear and convincing evidence that the requirements for ordering emancipation under this section have been met. Prior to entering a judgment of emancipation, the court shall advise the minor of the consequences of emancipation, including, but not limited to, the benefits and services available to an emancipated minor and the risks involved with being emancipated. Such advisements shall include, at a minimum, the words to the following effect:

(a) If you become emancipated, you will have some of the rights that come with adulthood. These rights include: Handling your own affairs; living where you choose; entering into contracts; keeping and spending your money; making decisions regarding your own health care, medical care, dental care, and mental health care, without parental knowledge; enlisting in the military without your parent’s consent; marrying without your parent’s consent; applying for public assistance; suing someone or being sued; enrolling in school or college; and owning real property;

(b) Even if you are emancipated, you still must: Stay in school as required by Nebraska law; be subject to child labor laws and work permit rules limiting the number of hours you can work; and be of legal age to consume alcohol; and

(c) When you become emancipated: You lose your right to have financial support for basic living expenses for food, clothing, and shelter, and health care paid for by your parents or guardian; your parents or guardian will no longer be legally or financially responsible if you injure someone; and being emancipated does not automatically make you eligible for public assistance or benefits.

(2) If, after hearing, the court determines that emancipation is in the best interests of the minor and that the minor understands his or her rights and responsibilities under sections 43-4801 to 43-4812 as an emancipated minor, the court shall enter a judgment of emancipation. In making its determination regarding the petition for emancipation, the court shall determine whether the petitioner has proven each of the facts set forth in subdivision (9) of section 43-4803.

Source:Laws 2018, LB714, § 9.

43-4810. Judgment of emancipation; effect; certified copy; use by third party.

(1) A judgment of emancipation removes the disability of minority insofar as that disability may affect: (a) Establishment of his or her own residence; (b) incurring indebtedness or contractual obligations of any kind; (c) consenting to medical, dental, or psychiatric care without the consent, knowledge, or liability of parents or a guardian; (d) enlisting in the military without a parent’s or guardian's consent; (e) marrying without a parent’s or guardian's consent; (f) being individually eligible for public assistance; (g) the litigation and settlement of controversies; (h) enrolling in any school or college; and (i) acquiring, encumbering, and conveying property or any interest therein. For the purposes described in this subsection, the minor shall be considered in law as an adult and any obligation or benefit he or she incurs is enforceable by and against such minor without regard to his or her minority.

(2) A minor emancipated by court order shall be considered to have the rights and responsibilities of an adult, except for those specific constitutional and statutory age requirements regarding voting, use of alcoholic beverages, gambling, use of tobacco, and other health and safety regulations relevant to the minor because of his or her age.

(3) The emancipated minor shall be provided a certified copy of the judgment of emancipation at the time the judgment is entered. Upon presentation of the judgment of emancipation, a third party shall be allowed to retain a copy of the same as proof of the minor’s ability to act as stated in this section.

(4) Unless otherwise provided in the judgment of emancipation, the judgment of emancipation shall explicitly suspend any order regarding custody, parenting time, or support of the minor and be reported by the district court clerk to the jurisdiction that issued such order.

Source:Laws 2018, LB714, § 10.

43-4811. Effect on prosecution of criminal offense.

An emancipated minor shall not be considered an adult for prosecution of a criminal offense.

Source:Laws 2018, LB714, § 11.

43-4812. Rescission; motion; grounds; when granted; hearing; notice; effect on prior order of custody, parenting time, or support.

(1) A motion for rescission may be filed by any interested person or public agency in order to rescind a judgment of emancipation on the following grounds:

(a) The minor has become indigent and has insufficient means of support; or

(b) The judgment of emancipation was obtained by fraud, misrepresentation, or the withholding of material information.

(2) The motion for rescission shall be filed in the district court in which the petition for emancipation was filed. The motion for rescission of a judgment of emancipation shall be granted if it is proven:

(a) That rescinding the judgment of emancipation is in the best interests of the emancipated minor; and

(b)(i) That the minor has become indigent and has insufficient means of support; or

(ii) That the judgment of emancipation was obtained by fraud, misrepresentation, or the withholding of material information.

(3) Upon the filing of a motion for rescission, the court shall fix a time for a hearing on the motion. The hearing shall be held not less than forty-five days and not more than sixty days after the filing of such motion unless any party for good cause shown requests a continuance of the hearing or all parties agree to a continuance.

(4)(a) Upon filing a motion pursuant to subsection (3) of this section, and at least thirty days prior to the hearing date, the movant shall serve a notice of filing, together with a copy of the motion for rescission and a summons to appear at the hearing, upon:

(i) The emancipated person;

(ii) The parents or the person who was the legal guardian of the emancipated person or, if the parents or legal guardian cannot be found, the nearest known relative of the emancipated person residing within the state, if any; and

(iii) The legal custodian of the emancipated person prior to emancipation, if any.

(b) Service and summons shall be made in accordance with section 25-505.01.

(c) Upon a motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute, the court may permit service to be made (i) by leaving the process at the party's usual place of residence and mailing a copy by first-class mail to the party's last-known address, (ii) by publication, or (iii) by any manner reasonably calculated under the circumstances to provide the party with actual notice of the proceedings and an opportunity to be heard.

(d) The emancipated minor may file a written response objecting to the motion to rescind emancipation within thirty days after service of the notice of the hearing.

(5) If, after hearing, the court determines by clear and convincing evidence that rescinding the judgment of emancipation is in the best interests of the minor because the minor has become indigent and has insufficient means of support, or because the judgment of emancipation was obtained by fraud, misrepresentation, or the withholding of material information, the court shall rescind the judgment of emancipation.

(6) If a prior order regarding custody, parenting time, or support of the minor was suspended by the judgment of emancipation, the order rescinding the judgment of emancipation shall be reported by the district court clerk to the jurisdiction that issued such order and shall serve to reinstate such prior order of custody, parenting time, or support.

(7) The parents or legal guardian or legal custodian of a minor emancipated by court order are not liable for any debts incurred by the minor child during the period of emancipation.

(8) Rescinding a judgment of emancipation does not affect an obligation, responsibility, right, or interest that arose during the period of time that the judgment of emancipation was in effect.

Source:Laws 2018, LB714, § 12.

43-4901. Act, how cited.

Sections 43-4901 to 43-4903 shall be known and may be cited as the Newborn Safe Haven Act.

Source:Laws 2024, LB876, § 1.
Effective Date: July 19, 2024

43-4902. Public information program.

(1) Subject to available funding, it is the intent of the Legislature to appropriate sixty-five thousand dollars to the Department of Health and Human Services for fiscal year 2024-25 and ten thousand dollars each fiscal year thereafter, to develop, implement, and maintain a public information program to inform the general public of the Newborn Safe Haven Act.

(2) Components of the program shall include, but not be limited to:

(a) Creation and maintenance of a permanent, interactive website that provides information to the public about the Newborn Safe Haven Act, including authorized drop-off locations;

(b) Distribution of literature at statewide locations, as determined by the department, including the toll-free telephone number of the National Safe Haven Alliance;

(c) Development of educational, promotional, and informational materials in print, audio, video, electronic, and other media formats which includes the toll-free telephone number of the National Safe Haven Alliance; and

(d) Training to carry out the provisions of the Newborn Safe Haven Act for emergency care providers, 911 operators, hospital staff, firefighters, law enforcement officers, or any member of the public expressing an interest in such training.

Source:Laws 2024, LB876, § 2.
Effective Date: July 19, 2024

43-4903. Leaving child at a hospital, a staffed fire station, a staffed law enforcement agency, or an emergency care provider; no prosecution for crime; custody of child; duty.

(1) No person shall be prosecuted for any crime based solely upon the act of leaving a child ninety days old or younger in the custody of an employee on duty at: (a) A hospital licensed by the State of Nebraska; (b) a staffed fire station; (c) a staffed law enforcement agency; or (d) an emergency care provider.

(2) The hospital, staffed fire station, staffed law enforcement agency, or emergency care provider shall promptly contact appropriate authorities to take custody of the child.

Source:Laws 2008, LB157, § 1; Laws 2008, First Spec. Sess., LB1, § 1; R.S.1943, (2016), § 29-121; Laws 2024, LB876, § 3.
Effective Date: July 19, 2024