Nebraska Revised Statute 43-279.01
Chapter 43 Section 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:
(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.
- Nebraska Indian Child Welfare Act, see section 43-1501.
1. Due Process
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).
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).
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).
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).
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).
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).