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 husband or wife may adopt a minor child unless the husband or wife joins in the petition therefor. If the husband or wife so joins in the petition therefor, the adoption shall be by them jointly, except that an adult husband or wife 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 husband or wife may adopt an adult child unless the husband or wife joins in the petition therefor. If the husband or wife 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.

Cross References

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

Annotations

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).

43-102. Petition requirements; decree; adoptive home study, when required; jurisdiction; filings.

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 consent or consents required by sections 43-104 and 43-105 or section 43-104.07, the documents required by section 43-104.07 or the documents required by sections 43-104.08 to 43-104.25, and a completed preplacement adoptive home study if required by section 43-107 shall be filed prior to the hearing required in section 43-103.

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 separate juvenile court already has jurisdiction over the child to be adopted under the Nebraska Juvenile Code, such separate 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 separate juvenile court already has jurisdiction over the child to be adopted under the Nebraska Juvenile Code, such separate juvenile court. Such proceeding is considered a county court proceeding even if heard by a separate juvenile court judge and an order of the separate 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 separate juvenile court judge shall be preserved as in any other separate juvenile court proceeding. The clerks of the district courts shall transfer all adoption petitions and other adoption filings which were filed with such clerks prior to August 28, 1999, to the clerk of the county court where the separate juvenile court which heard the proceeding is situated. The clerk of such county court shall file and docket such petitions and other filings.

Except as set out in subdivisions (1)(b)(ii), (iii), (iv), and (v) of section 43-107, an adoption decree shall not be issued until at least six months after an adoptive home study has been completed by the Department of Health and Human Services or a licensed child placement agency.

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.

Cross References

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

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

Annotations

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.

43-104. Adoption; consent required; exceptions.

(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 separate 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, or the adult child, (b) any district court, county court, or separate juvenile court in the State of Nebraska having jurisdiction of the custody of a minor child by virtue of proceedings had in any district court, county court, or separate juvenile court in the State of Nebraska or by virtue of the Uniform Child Custody Jurisdiction and Enforcement Act, and (c) 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 43-104.25. On and after April 20, 2002, 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.

(2) Consent shall not be required of any parent who (a) has relinquished the child for adoption by a written instrument, (b) has abandoned the child for at least six months next preceding the filing of the adoption petition, (c) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (d) is incapable of consenting.

(3) 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 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.

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

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.

Cross References

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

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

Annotations

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).

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).

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).

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).

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).

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).

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; biological father registry; Department of Health and Human Services; duties.

(1) The Department of Health and Human Services shall establish a biological 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 biological 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 shall not divulge the names and addresses of persons listed with the biological father registry to any other person except as authorized by law or upon order of a court of competent jurisdiction for good cause shown.

(6) 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.

(7) A person who has been adjudicated by a Nebraska court of competent jurisdiction to be the biological father of a child born out of wedlock who is the subject of a proposed adoption shall not be construed to be a putative father for purposes of sections 43-104.01 to 43-104.05 and shall not be subject to the provisions of such sections as applied to such fathers. Whether such person's consent is required for the proposed adoption shall be determined by the Nebraska court having jurisdiction over the custody of the child pursuant to section 43-104.22, as part of proceedings required under section 43-104 to obtain the court's consent to such adoption.

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

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

A Notice of Objection to Adoption and Intent to Obtain Custody shall be filed with the biological father registry under section 43-104.01 on forms provided by the Department of Health and Human Services (1) within five business days after the birth of the child or (2) if notice is provided after the birth of the child (a) within five business days after receipt of the notice provided under section 43-104.12 or (b) within five business days after the last date of any published notice provided under section 43-104.14, whichever notice is earlier. Such notice shall be considered to have been filed if it is received by the department or postmarked prior to the end of the fifth 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.

Annotations

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 biological 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 biological 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 (1) 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 and (2) any Nebraska court identified by the putative father under section 43-104.01 as having jurisdiction over the custody of the child.

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.

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 biological 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 biological 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.

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) If a Notice of Objection to Adoption and Intent to Obtain Custody is timely filed with the biological father registry pursuant to section 43-104.02, either the putative father, the mother, or her agent specifically designated in writing shall, within thirty days after the filing of such notice, file a petition for adjudication of the notice and a determination of whether the putative father's consent to the proposed adoption is required. The petition shall be filed in the county court in the county where such child was born or, if a separate juvenile court already has jurisdiction over the custody of the child, in the county court of the county in which such separate juvenile court is located.

(2) If such a petition is not filed within thirty days after the filing of such notice and the mother of the child has executed a valid relinquishment and consent to the adoption within sixty days of the filing of such notice, the putative father's consent to adoption of the child shall not be required, he is not entitled to any further notice of the adoption proceedings, and any alleged parental rights and responsibilities of the putative father shall not be recognized thereafter in any court.

(3) After the timely filing of such petition, 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 putative father's claim of paternity, the court shall order DNA testing to establish whether the putative father is the biological father. The court shall assess the costs of such testing between the parties in an equitable manner. Whether the putative father's consent to the adoption is required shall be determined pursuant to section 43-104.22. The court shall appoint a guardian ad litem to represent the best interests of the child.

(4)(a) The county court of the county where the child was born or the separate juvenile court having jurisdiction over the custody of the child shall have 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 adoption proceedings concerning the child, including appeals, unless such jurisdiction is transferred under subdivision (b) of this subsection.

(b) Except as otherwise provided in this subdivision, 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 putative father is required for adoption of the minor child and the putative father refuses such consent or (ii) the mother of the child, within thirty days after the conclusion of proceedings under this section, including appeals, has not executed a valid relinquishment and consent to the adoption. The court, upon its own motion, may retain the case for good cause shown.

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.

Annotations

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).

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).

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).

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 husband, 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 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 43-104.25.

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

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 shall complete and sign an affidavit in writing and under oath. The affidavit shall be executed by the biological mother before or at the time of execution of the consent or relinquishment and shall be attached as an exhibit to any petition to finalize the adoption. If the biological mother is under the age of nineteen, the affidavit may be executed 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 ................ .

(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.

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 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 registered or certified mail, restricted delivery, return receipt requested:

(1) Any person adjudicated by a court in this state or by a court in another state or territory of the United States to be the biological father of the child;

(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.

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) 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, or that the biological mother has joined or plans to join in a petition for adoption to be filed by her husband;

(3) That the person being notified has been identified as a possible biological father of the child;

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

(5) That the possible biological father 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 pursuant to section 43-104.02, or (e) object to the adoption in a proceeding before any Nebraska court which has, prior to his receipt of this notice, adjudicated him to be the biological father of the child;

(6) That to deny paternity, to waive his parental rights, or to relinquish and consent to the adoption, the biological father 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 he 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 biological father, which the biological father 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.

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 pursuant to section 43-104.02, or (v) object to the adoption in a proceeding before any Nebraska court which has adjudicated him to be the biological father of the child prior to his receipt of notice; and

(g) That (i) 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 (ii) 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.

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 attached to any petition filed in an adoption proceeding.

Source:Laws 1995, LB 712, § 9.

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 to finalize the adoption shall specifically allege compliance with sections 43-104.08 to 43-104.16, and shall attach as exhibits all documents which are evidence of such compliance. 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 provided notice under sections 43-104.12 to 43-104.14 and failed to timely file a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.02 or petition pursuant to section 43-104.05, or (3) is not required to consent to the adoption pursuant to proceedings conducted under section 43-104.22.

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

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

If a petition to finalize an 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 of the child, including any evidence that providing notice to a 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 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. If the attorney or agency fails to exercise due diligence in complying with such sections or at any time upon the petition or application of any interested party the court may appoint a guardian ad litem to represent the interests of the biological father. The guardian ad litem shall be chosen from a qualified pool of local attorneys. The guardian ad litem shall receive reasonable compensation for the representation, the amount to be determined at the discretion of the court.

Source:Laws 1995, LB 712, § 11.

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. Child born out of wedlock; guardian ad litem for biological father; duties.

The guardian ad litem for the biological father shall:

(1) Identify the biological father whenever possible;

(2) Notify the biological father or possible biological fathers of the proposed relinquishment of the child and inform the biological father or possible biological fathers of their parental rights and duties with regard to the child;

(3) Notify the court if all reasonable attempts to both identify and notify the biological father or possible biological fathers are unsuccessful; and

(4) Determine, by deposition, by affidavit, by interview, or through testimony at a hearing, the following: Whether the mother was married at the time of conception of the child or at any time thereafter, whether the mother was cohabitating with a man at the time of conception or birth of the child, whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy, whether conception was the result of sexual assault or incest, and whether any man has formally or informally acknowledged or declared his possible paternity of the child.

Source:Laws 1995, LB 712, § 12.

43-104.20. Child born out of wedlock; guardian ad litem for biological father; investigation; hearing.

The guardian ad litem for the biological father shall complete the investigation of the interests of the biological father within twenty days after appointment unless the court finds reasonable cause to extend the time period. The court shall hold a hearing as soon as practicable to determine whether the child was born out of wedlock, to determine the identity of the biological father, if possible, and to determine the rights of the biological father. The court may exercise its contempt powers with respect to any individual who admits having knowledge of information regarding the paternity of the child but who refuses to disclose that information to the guardian ad litem or to the court.

Source:Laws 1995, LB 712, § 13.

43-104.21. Child born out of wedlock; guardian ad litem for biological father; hearing; notice; when.

(1) Notice of the hearing under section 43-104.20 shall be given to every person identified by the guardian ad litem as the biological father or a possible biological father. Notice shall be given in the manner appropriate under the rules of civil procedure for the service of process in this state and in any additional manner that the court directs. Proof of notice shall be filed with the court before the hearing.

(2) Notice is not required to be given to a person who may be the father of a child conceived as a result of a sexual assault or incest or if notification is likely to result in a threat to the safety of the biological mother or the child.

Source:Laws 1995, LB 712, § 14.

43-104.22. Child born out of wedlock; hearing; paternity of child; father's consent required; when; determination of custody.

At any hearing to determine the parental rights of an adjudicated biological father or putative biological father of a minor child born out of wedlock and whether such father's consent is required for the adoption of such child, the court shall receive evidence with regard to the actual paternity of the child and whether such father is a fit, proper, and suitable custodial parent for the child. 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 putative father failed to timely file a petition to adjudicate a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.05;

(9) Notice was provided to an adjudicated biological father through service of process under applicable state law and he failed to object to the adoption or failed to appear at the hearing conducted under section 43-104.25;

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

(11) The man 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.

Annotations

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; order finalizing adoption without biological father's notification; when; appeal.

If, after viewing the evidence submitted to support a petition to finalize an adoption or any evidence submitted by a guardian ad litem if one is appointed, the court determines that no biological father can be identified, or that no identified father can be notified without likely threat to the safety of the biological mother or the child, or upon a finding of due diligence and substantial compliance with sections 43-104.08 to 43-104.16 and a finding that no biological father has timely filed under section 43-104.02, the court shall enter an order finalizing the adoption of the child. Subject to the disposition of an appeal, upon the expiration of thirty days after an order is issued under this section, the order shall not be reversed, vacated, or modified in any manner or upon any ground including fraud, misrepresentation, or failure to provide notice under sections 43-104.12 to 43-104.14.

Source:Laws 1995, LB 712, § 16.

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. Child born out of wedlock; biological father; applicability of sections.

With respect to any person who has been adjudicated by a Nebraska court of competent jurisdiction to be the biological father of a child born out of wedlock who is the subject of a proposed adoption:

(1) Such person shall not be construed to be a putative father for purposes of sections 43-104.01 to 43-104.05 and shall not be subject to the provisions of such sections as applied to such fathers; and

(2)(a) If the adjudicated biological father has been provided notice in substantial compliance with section 43-104.12 or section 43-104.14, whichever notice is earlier, and he has not executed a valid relinquishment or consent to the adoption, the mother or lawful custodian of the child or his or her agent shall file a motion in the court with jurisdiction of the custody of the child for a hearing to determine whether such father's consent to the adoption is required and whether the court shall give its consent to the adoption;

(b) Notice of the motion and hearing shall be served on the adjudicated biological father in the manner provided for service of process under applicable state law; and

(c) Within thirty days after service of notice under subdivision (b) of this subdivision, the court shall conduct an evidentiary hearing to determine whether the adjudicated biological father's consent to the adoption is required and whether the court shall give its consent to the adoption. Whether such father's consent is required for the proposed adoption shall be determined pursuant to section 43-104.22.

Source:Laws 2007, LB247, § 18.

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)(c) 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) In all other cases when consent cannot be given as provided in subdivision (1)(c) of 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.

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.

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. Consents; signature; witnesses; acknowledgment; certified copy of orders.

Consents required to be given under sections 43-104 and 43-105, except under subdivision (1)(b) of section 43-104, 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. Consents under subdivision (1)(b) of section 43-104 shall be shown by a duly certified copy of order of the court required to grant such consent.

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.

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

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).

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).

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).

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).

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).

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, except that for 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 register 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 register.

(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 register 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 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.

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 husband and wife 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.

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. Subdivisions (b) and (c) of this subsection shall only apply when the relinquishment or consent for an adoption is given on or after September 1, 1988.

(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.

Annotations

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 section 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.

Cross References

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

Annotations

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 43-102 to 43-112.

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

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.

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 on microfilm 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.

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.

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, subdivisions (1)(b), (1)(c), and (1)(d) of section 43-109, 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.

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 register 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.

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.

43-201. 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) Age of majority means nineteen years of age;

(2) 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;

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

(4) 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;

(5) 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;

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

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

(8) 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;

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

(10) Mediator for juvenile offender and victim mediation means a person who (a) has completed at least thirty hours of training in conflict resolution techniques, neutrality, agreement writing, and ethics set forth in section 25-2913, (b) has an additional eight hours of juvenile offender and victim mediation training, and (c) meets the apprenticeship requirements set forth in section 25-2913;

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

(12) 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;

(13) Nonsecure detention means detention characterized by the absence of restrictive hardware, construction, and procedure. Nonsecure detention services may include a range of placement and supervision options, such as home detention, electronic monitoring, day reporting, drug court, tracking and monitoring supervision, staff secure and temporary holdover facilities, and group homes;

(14) Parent means one or both parents or a stepparent when such stepparent is married to the custodial parent as of the filing of the petition;

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

(16) 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;

(17) 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;

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

(19) 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; and

(20) 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.

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.

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).

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 through juvenile offender and victim mediation and fulfilling the terms of the resulting agreement which may require restitution and community service;

(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.

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).

43-247. Juvenile court; jurisdiction.

The juvenile court shall have exclusive original jurisdiction as to any juvenile defined in subdivision (1) of this section who is under the age of sixteen, as to any juvenile defined in subdivision (3) of this section, and as to the parties and proceedings provided in subdivisions (5), (6), and (8) of this section. As used in this section, all references to the juvenile's age shall be the age at the time the act which occasioned the juvenile court action occurred. The juvenile court shall have concurrent original jurisdiction with the district court as to any juvenile defined in subdivision (2) of this section. The juvenile court shall have concurrent original jurisdiction with the district court and county court as to any juvenile defined in subdivision (1) of this section who is age sixteen or seventeen, any juvenile defined in subdivision (4) of this section, and any proceeding under subdivision (7) or (11) of this section. The juvenile court shall have concurrent original jurisdiction with the county court as to any proceeding under subdivision (9) or (10) of this section. Notwithstanding any disposition entered by the juvenile court under the Nebraska Juvenile Code, the juvenile court's jurisdiction over any individual adjudged to be within the provisions of this section shall continue until the individual reaches the age of majority or the court otherwise discharges the individual from its jurisdiction.

The juvenile court in each county as herein provided 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;

(2) Any juvenile who has committed an act which would constitute a felony under the laws of this state;

(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; or who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such juvenile, (b) who, by reason of being wayward or habitually disobedient, is uncontrolled by his or her parent, guardian, or custodian; who deports himself or herself so as to injure or endanger seriously the morals or health of himself, herself, or others; or who is habitually truant from home or school, or (c) who is mentally ill and dangerous as defined in section 71-908;

(4) Any juvenile who has committed an act which would constitute a traffic offense as defined in section 43-245;

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

(6) The proceedings for termination of parental rights as provided in the Nebraska Juvenile Code;

(7) The proceedings for termination of parental rights as provided in section 42-364;

(8) 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;

(9) 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;

(10) The adoption or guardianship proceedings for a child over which the juvenile court already has jurisdiction under another provision of the Nebraska Juvenile Code; and

(11) The paternity or custody determination for a child over which the juvenile court already has 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.

Source:Laws 1981, LB 346, § 3; Laws 1982, LB 215, § 2; Laws 1982, LB 787, § 2; Laws 1984, LB 13, § 77; Laws 1985, LB 255, § 32; Laws 1985, LB 447, § 13; Laws 1996, LB 1044, § 127; Laws 1997, LB 307, § 58; Laws 1997, LB 622, § 63; Laws 1998, LB 1041, § 22; Laws 2001, LB 23, § 1; Laws 2004, LB 1083, § 92; Laws 2006, LB 1115, § 31; Laws 2008, LB280, § 3; Laws 2008, LB1014, § 37.

Cross References

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

Paternity determinations, jurisdiction, see section 25-2740.

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

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).

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).

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

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

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

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

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).

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

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).

9. Miscellaneous

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 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. Facilitated conferencing; confidential; privileged communications.

(1) Pending the adjudication of any 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 facilitated conferencing. Facilitated conferencing may include prehearing conferences and family group conferences. All discussions taking place during such facilitated conferences, including plea negotiations, shall be considered confidential and privileged communications, except communications required by mandatory reporting under section 28-711 for new allegations of child abuse or neglect which were not previously known or reported.

(2) For purposes of this section:

(a) 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; and

(b) Family group conference means a facilitated collaborative process in which families work with extended family members and others to make decisions and develop plans for the best interests of children who are under the jurisdiction of the court.

Source:Laws 2008, LB1014, § 38.

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 the officer has reasonable grounds to believe such juvenile committed such violation;

(2) A juvenile is seriously endangered in his or her surroundings and immediate removal appears to be necessary for the juvenile's protection;

(3) 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;

(4) The officer has reasonable grounds to believe that the juvenile has run away from his or her parent, guardian, or custodian;

(5) 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; or

(6) The officer has reasonable grounds to believe the juvenile is truant from school.

Source:Laws 1981, LB 346, § 4; Laws 1997, LB 622, § 64; Laws 2004, LB 1083, § 93; Laws 2010, LB800, § 14.

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 who has been arrested, restrained, detained, or deprived of his or her liberty for whatever reason shall permit the person in custody, without unnecessary delay after arrival at a police station or detention facility, to call or consult an attorney who is retained by or on behalf of such person in custody or whom the person in custody may desire to consult, except when exigent circumstances exist. 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.

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), (4), or (5) 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) or (4) of section 43-248;

(b) The peace officer may require a juvenile taken into temporary custody under section 29-401 or subdivision (1) or (4) 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), (4), or (5) 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 a secure or nonsecure placement and securing placement in such secure or nonsecure 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. Until January 1, 2013, a status offender accused of violating a valid court order may be securely detained in a juvenile detention facility longer than twenty-four hours if he or she is afforded a detention hearing before a court within twenty-four hours, excluding nonjudicial days, and if, prior to a dispositional commitment to secure placement, a public agency, other than a court or law enforcement agency, is afforded an opportunity to review the juvenile's behavior and possible alternatives to secure placement and has submitted a written report to the court; 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) When a juvenile is taken into temporary custody pursuant to subdivision (2) of section 43-248, 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.

(3) If the peace officer takes the juvenile into temporary custody pursuant to subdivision (3) 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 (2) 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 shall execute a written certificate as prescribed by the Department of Health and Human Services 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.

(4) When a juvenile is taken into temporary custody pursuant to subdivision (6) of section 43-248, the peace officer shall deliver the juvenile to the enrolled school of such juvenile.

(5) 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.

(6) In determining the appropriate temporary placement of a juvenile under this section, the peace officer shall select the placement which is least restrictive of the juvenile's freedom so long as such placement is compatible with the best interests of the juvenile and the safety of the community.

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.

Annotations

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 43â��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 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.

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; and

(4) A juvenile under the age of fourteen years shall not be placed with or committed to a youth rehabilitation and treatment center except as provided in section 43-286.

Source:Laws 1998, LB 1073, § 25; Laws 2012, LB972, § 1.

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) 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.

(3) 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.

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 secure or nonsecure 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 shall be detained in any secure detention facility 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 is necessary. 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.

(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 further detention or placement 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.

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.

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.

Pending the adjudication of any case, if it appears that the need for placement or further detention exists, the juvenile may be (1) 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, (2) kept in some suitable place provided by the city or county authorities, (3) placed in any proper and accredited charitable institution, (4) 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, or (5) 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. 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.

If a juvenile has been removed from his or her parent, guardian, or custodian pursuant to subdivision (2) 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 subsections (1) through (4) of 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.

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 43â��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 (3) 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 (3) 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.

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 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 petition has been filed alleging that such juvenile has violated an order of the juvenile court, (2) a 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.

43-256. Continued placement or detention; probable cause hearing; release requirements; exceptions.

When the court enters an order continuing placement or detention 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 which hearing the burden of proof shall be upon the state 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. This section and section 43-255 shall not apply to a juvenile (1) who has escaped from a commitment or (2) who has been taken into custody for his or her own protection as provided in subdivision (2) 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.

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; responsibility.

(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) 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. 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.

(3) Upon completion of the evaluation, the juvenile shall be returned to the court together with a written 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:

(a) Except as provided in subdivision (4)(b) of this section, the county in which the case is pending is responsible for all detention costs incurred before and after an evaluation period prior to adjudication, the cost of delivering the juvenile to the location of the evaluation, and the cost of returning the juvenile to the court for further proceedings; and

(b) The state is responsible for (i) the costs incurred during an evaluation when the juvenile has been placed with the Department of Health and Human Services unless otherwise ordered by the court pursuant to section 43-290 and (ii) the preevaluation detention costs for any days over the first ten days from the date the court places the juvenile with the department for evaluation.

(5) The Department of Health and Human Services is not responsible for preadjudication costs except as provided in subdivision (4)(b) of this section.

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.

Annotations

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 secure or nonsecure 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.

43-260.01. Detention; factors.

The need for preadjudication placement or supervision and the need for detention of a juvenile and whether secure or nonsecure detention is indicated may be determined as follows:

(1) The standardized juvenile detention screening instrument shall be used to evaluate the juvenile;

(2) If the results indicate that secure detention is not required, nonsecure detention placement or supervision options shall be pursued; and

(3) If the results indicate that secure detention is required, detention at the secure level as indicated by the instrument shall be pursued.

Source:Laws 2000, LB 1167, § 14.

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 prior to an adjudication 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) Result in dismissal of the juvenile petition or criminal charges if the juvenile successfully completes the program;

(6) 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; and

(7) 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.

Source:Laws 2003, LB 43, § 3.

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) Perform chemical dependency assessments of diverted juvenile offenders when indicated, make appropriate referrals for treatment, and monitor treatment and aftercare;

(4) Provide 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) Provide 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.

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) Upon agreement of the victim, participation in juvenile offender and victim mediation.

Source:Laws 2003, LB 43, § 5.

43-260.07. Juvenile pretrial diversion program; data; duties.

(1) Beginning December 1, 2003, and every December 1 thereafter, every county attorney or city attorney of a county or city which has a juvenile pretrial diversion program shall report the information pertaining to the program required by rules and regulations adopted and promulgated by the Nebraska Commission on Law Enforcement and Criminal Justice to the commission.

(2) Juvenile pretrial diversion program data shall be maintained and compiled by the Nebraska Commission on Law Enforcement and Criminal Justice.

Source:Laws 2003, LB 43, § 6.

43-261. Repealed. Laws 2008, LB 1014, § 82.

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.

43-264. Summons; service.

If the petition filed under section 43-274 alleges that the juvenile is a juvenile as described in subdivision (1), (2), or (3)(b) 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.

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.

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).

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.

(1) When any juvenile shall be 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. The court shall inform such juvenile 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.

Source:Laws 1981, LB 346, § 28; Laws 1982, LB 787, § 12; Laws 2000, LB 1167, § 19.

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.

(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 (2) or (3) of section 43-248, subsection (2) of section 43-250, or section 43-251. If removal has not occurred, a guardian ad litem shall be appointed at the commencement of all cases brought under subdivision (3)(a) or (8) 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 within two weeks after the appointment and once every six months thereafter 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 recommendations to the court regarding the temporary and permanent placement of the protected juvenile and shall submit a written report to the court at every dispositional or review hearing, or in the alternative, 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;

(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.

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.

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).

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 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.

43-274. County attorney; preadjudication powers and duties; juvenile court petition, pretrial diversion, or mediation; procedures.

(1) The county attorney, having knowledge of a juvenile in his or her county who appears to be a juvenile described in subdivision (1), (2), (3), or (4) of section 43-247, may file with the clerk of the court having jurisdiction in the matter a petition in writing specifying which subdivision of section 43-247 is alleged, setting forth the facts verified by affidavit, and requesting the court to determine whether support will be ordered pursuant to section 43-290. Allegations under subdivisions (1), (2), and (4) of section 43-247 shall be made with the same specificity as a criminal complaint. It shall be sufficient if the affidavit is based upon information and belief. Such petition and all subsequent proceedings shall be entitled In the Interest of ..............., a Juvenile Under Eighteen Years of Age, inserting the juvenile's name in the blank.

(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 shall be construed to include a city attorney or village prosecutor.

(3) 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.

(4)(a) If a juvenile appears to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 because of a nonviolent act or acts, the county attorney may offer mediation to the juvenile and the victim of the juvenile's act. If both the juvenile and the victim agree to mediation, the juvenile, his or her parent, guardian, or custodian, and the victim shall sign a mediation consent form and select a mediator or approved center from the roster made available pursuant to section 25-2908. The county attorney shall refer the juvenile and the victim to such mediator or approved center. The mediation sessions shall occur within thirty days after the date the mediation referral is made unless an extension is approved by the county attorney. The juvenile or his or her parent, guardian, or custodian shall pay the mediation fees. The fee shall be determined by the mediator in private practice or by the approved center. A juvenile shall not be denied services at an approved center because of an inability to pay.

(b) Terms of the agreement shall specify monitoring, completion, and reporting requirements. The county attorney, the court, or the probation office shall be notified by the designated monitor if the juvenile does not complete the agreement within the agreement's specified time.

(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; and

(iv) Any other areas of agreement.

(d) If no mediation agreement is reached, the mediator or approved center will report that fact to the county attorney within forty-eight hours of the final mediation session excluding nonjudicial days.

(e) If a mediation agreement is reached and the agreement does not violate public policy, the agreement shall be approved by the county attorney. If the agreement is not approved and the victim agrees to return to mediation (i) the juvenile may be referred back to mediation with suggestions for changes needed in the agreement to meet approval or (ii) the county attorney may proceed with the filing of a criminal charge or juvenile court petition. If the juvenile agrees to return to mediation but the victim does not agree to return to mediation, the county attorney may consider the juvenile's willingness to return to mediation when determining whether or not to file a criminal charge or a juvenile court petition.

(f) If the juvenile meets the terms of an approved mediation agreement, the county attorney shall not file a criminal charge or juvenile court petition against the juvenile for the acts for which the juvenile was referred to mediation.

Source:Laws 1981, LB 346, § 30; Laws 1987, LB 638, § 4; Laws 1998, LB 1073, § 20; Laws 2003, LB 43, § 13.

Annotations

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 mediation consent form; filing; time.

Whenever a juvenile is detained or placed in custody under the provisions of section 43-253, a petition, complaint, or mediation consent form must be filed within forty-eight hours excluding nonjudicial days.

Source:Laws 1981, LB 346, § 31; Laws 1998, LB 1073, § 21.

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; criminal charge, juvenile court petition, pretrial diversion, or mediation; determination; considerations.

In cases coming within subdivision (1) of section 43-247, when there is concurrent jurisdiction, or subdivision (2) or (4) of section 43-247, when the juvenile is under the age of sixteen years, the county attorney shall, in making the determination whether to file a criminal charge, file a juvenile court petition, offer juvenile pretrial diversion, or offer mediation, consider: (1) The type of treatment such juvenile would most likely be amenable to; (2) whether there is evidence that the alleged offense included violence or was committed in an aggressive and premeditated manner; (3) the motivation for the commission of the offense; (4) the age of the juvenile and the ages and circumstances of any others involved in the offense; (5) the previous history of the juvenile, including whether he or she had been convicted of any previous offenses or adjudicated in juvenile court, and, if so, whether such offenses were crimes against the person or relating to property, and other previous history of antisocial behavior, if any, including any patterns of physical violence; (6) the sophistication and maturity of the juvenile as determined by consideration of his or her home, school activities, emotional attitude and desire to be treated as an adult, pattern of living, and whether he or she has had previous contact with law enforcement agencies and courts and the nature thereof; (7) whether there are facilities particularly available to the juvenile court for treatment and rehabilitation of the juvenile; (8) 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; (9) whether the victim agrees to participate in mediation; (10) whether there is a juvenile pretrial diversion program established pursuant to sections 43-260.02 to 43-260.07; (11) whether the juvenile has been convicted of or has acknowledged unauthorized use or possession of a firearm; (12) whether a juvenile court order has been issued for the juvenile pursuant to section 43-2,106.03; (13) whether the juvenile is a criminal street gang member; (14) whether the juvenile has been previously committed to a youth rehabilitation and treatment center; and (15) such other matters as the county attorney deems relevant to his or her decision.

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.

Annotations

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).

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).

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. Telephonic and videoconference hearings allowed under this section shall not be in conflict with section 24-734.

Source:Laws 1981, LB 346, § 34; Laws 1992, LB 1184, § 13; Laws 1997, LB 622, § 71; Laws 2010, LB800, § 22.

Annotations

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).

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 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 is intelligently, voluntarily, and understandingly made and with an affirmative waiver of rights and that a factual basis for such admission exists. The court may base its adjudication provided in subsection (2) of this section on such admission.

(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.

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; 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) or (7) of section 43-247 and the parent or custodian 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 to engage counsel of their choice at their own expense or to have counsel appointed if unable to afford to hire a lawyer;

(c) Right to remain silent as to any matter of inquiry if the testimony sought to be elicited might tend to prove the parent or custodian guilty of any crime;

(d) Right to confront and cross-examine witnesses;

(e) Right to testify and to compel other witnesses to attend and testify;

(f) Right to a speedy adjudication hearing; and

(g) Right to appeal and have a transcript or record of the proceedings for such purpose.

(2) 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 or custodian 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.

(3) 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. If an Indian child is involved, the standard of proof shall be in compliance with the Nebraska Indian Child Welfare Act, if applicable.

(4) 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.

Cross References

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

Annotations

1. Due Process

2. Miscellaneous

1. Due Process

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 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, 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.

Cross References

Juvenile adjudication, inadmissible for purpose of attacking credibility of witness, see section 27-609.

43-281. Adjudication of jurisdiction; temporary placement for evaluation.

Following an adjudication of jurisdiction and prior to final disposition, 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 make arrangements for an appropriate evaluation.

Source:Laws 1981, LB 346, § 37; Laws 1982, LB 787, § 16; Laws 1994, LB 436, § 1; Laws 1998, LB 1073, § 24.

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.

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 subsection (4) 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) 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.

(6) 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.

Annotations

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 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 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).

Pursuant to subsection (6) of section 43â��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 43â��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).

43-284. Juvenile in need of assistance or special supervision; care and custody; payments for support; removal from home; restrictions.

When any juvenile is adjudged to be under subdivision (3), (4), or (9) 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 (1) the care of some suitable institution, (2) inpatient or outpatient treatment at a mental health facility or mental health program, (3) the care of some reputable citizen of good moral character, (4) 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, (5) the care of a suitable family, or (6) the care and custody of the Department of Health and Human Services.

Under subdivision (1), (2), (3), (4), or (5) 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.

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.

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.

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).

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 (8) 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.

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. 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.

43-285. Care of juvenile; authority of guardian; placement plan and report; when; 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 guardianship 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. Such guardianship shall not include the guardianship of any estate of the juvenile.

(2) Following an adjudication hearing at which a juvenile is adjudged to be under subdivision (3) 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. The department shall include in the plan for a juvenile who is sixteen years of age or older and subject to the guardianship of the department a written independent living transition proposal which meets the requirements of section 43-1311.03. The court may approve the plan, modify the plan, order that an alternative plan be developed, or implement another plan that is in the juvenile'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 assist the juvenile in acquiring independent living skills. Rules of evidence shall not apply at the dispositional hearing when the court considers the plan that has been presented.

(3) 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. 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 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. 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. 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.

Source:Laws 1981, LB 346, § 41; Laws 1982, LB 787, § 17; Laws 1984, LB 845, § 31; Laws 1985, LB 447, § 25; Laws 1989, LB 182, § 12; Laws 1990, LB 1222, § 3; Laws 1992, LB 1184, § 14; Laws 1993, LB 103, § 1; Laws 1996, LB 1044, § 133; Laws 1998, LB 1041, § 26; Laws 2010, LB800, § 23; Laws 2011, LB177, § 1; Laws 2011, LB648, § 1; Laws 2012, LB998, § 2.

Cross References

Foster Care Review Act, see section 43-1318.

Annotations

1. Authority of the court

2. Termination of parental rights

3. Standing

4. Expedited review

5. Miscellaneous

1. Authority of the court

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).

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

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).

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.

(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 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;

(ii) Permit the juvenile to remain in his or her own home or be placed in a suitable family home, subject to the supervision of the probation officer; or

(iii) Cause the juvenile to be placed in a suitable family home or institution, subject to the supervision of the probation officer. If the court has committed the juvenile to the care and custody of the Department of Health and Human Services, the department shall pay the costs of the suitable family home or institution which are not otherwise paid by the juvenile's parents.

Under subdivision (1)(a) of this section, upon a determination by the court that there are no parental, private, or other public funds available for the care, custody, and maintenance of a juvenile, the court may order a reasonable sum for the care, custody, 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 a suitable provision may be made for the juvenile without such payment; or

(b) The court may commit such juvenile to the Office of Juvenile Services, but a juvenile under the age of fourteen years shall not be placed at the Youth Rehabilitation and Treatment Center-Geneva or the Youth Rehabilitation and Treatment Center-Kearney unless he or she has violated the terms of probation or has committed an additional offense and the court finds that the interests of the juvenile and the welfare of the community demand his or her commitment. This minimum age provision shall not apply if the act in question is murder or manslaughter.

(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 or enter an order committing or placing the juvenile to the care and custody of the Department of Health and Human Services.

(3) When any juvenile is adjudicated to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 because of a nonviolent act or acts and the juvenile has not previously been adjudicated to be such a juvenile because of a violent act or acts, the court may, with the agreement of the victim, order the juvenile to attend juvenile offender and victim mediation with a mediator or at an approved center selected from the roster made available pursuant to section 25-2908.

(4) When a juvenile is placed on probation and a probation officer has reasonable cause to believe that such juvenile has committed or is about to commit a substance abuse violation, a noncriminal violation, or 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.

(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 be given a preliminary hearing in all cases when 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 court order. Such preliminary hearing shall be held before an impartial person other than his or her probation officer or any person directly involved with the case. 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.

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.

Cross References

Juvenile probation officers, appointment, see section 29-2253.

Placements and commitments, restrictions, see section 43-251.01.

Annotations

1. Probation

2. Restitution

3. Equal protection

4. Miscellaneous

1. Probation

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).

2. Restitution

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).

3. 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).

4. Miscellaneous

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).

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).

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).

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).

43-286.01. Juveniles; substance abuse or noncriminal violations of probation; administrative sanctions; probation officer; duties; powers; county attorney; file action to revoke probation; when.

(1) For purposes of this section:

(a) Administrative sanction means additional probation requirements imposed upon a juvenile subject to the supervision of a probation officer by his or her probation officer, with the full knowledge and consent of such juvenile and such juvenile's parents or guardian, designed to hold such juvenile accountable for substance abuse or noncriminal violations of conditions of probation, including, but not limited to:

(i) Counseling or reprimand by his or her probation officer;

(ii) Increased supervision contact requirements;

(iii) Increased substance abuse testing;

(iv) Referral for substance abuse or mental health evaluation or other specialized assessment, counseling, or treatment;

(v) Modification of a designated curfew for a period not to exceed thirty days;

(vi) Community service for a specified number of hours pursuant to sections 29-2277 to 29-2279;

(vii) Travel restrictions to stay within his or her residence or county of residence or employment unless otherwise permitted by the supervising probation officer;

(viii) Restructuring court-imposed financial obligations to mitigate their effect on the juvenile subject to the supervision of a probation officer; and

(ix) Implementation of educational or cognitive behavioral programming;

(b) Noncriminal violation means activities or behaviors of a juvenile subject to the supervision of a probation officer which create the opportunity for re-offending or which diminish the effectiveness of probation supervision resulting in a violation of an original condition of probation, including, but not limited to:

(i) Moving traffic violations;

(ii) Failure to report to his or her probation officer;

(iii) Leaving the juvenile's residence, jurisdiction of the court, or the state without the permission of the court or his or her probation officer;

(iv) Failure to regularly attend school, vocational training, other training, counseling, treatment, programming, or employment;

(v) Noncompliance with school rules;

(vi) Continued violations of home rules;

(vii) Failure to notify his or her probation officer of change of address, school, or employment;

(viii) Frequenting places where controlled substances are illegally sold, used, distributed, or administered and association with persons engaged in illegal activity;

(ix) Failure to perform community service as directed; and

(x) Curfew or electronic monitoring violations; and

(c) Substance abuse violation means activities or behaviors of a juvenile subject to the supervision of a probation officer associated with the use of chemical substances or related treatment services resulting in a violation of an original condition of probation, including, but not limited to:

(i) Positive breath test for the consumption of alcohol;

(ii) Positive urinalysis for the illegal use of drugs;

(iii) Failure to report for alcohol testing or drug testing;

(iv) Failure to appear for or complete substance abuse or mental health treatment evaluations or inpatient or outpatient treatment; and

(v) Tampering with alcohol or drug testing.

(2) Whenever a probation officer has reasonable cause to believe that a juvenile subject to the supervision of a probation officer has committed or is about to commit a substance abuse violation or noncriminal violation 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 administrative sanctions with the approval of his or her chief probation officer or such chief's designee. The decision to impose administrative 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 administrative sanctions are to be imposed, such juvenile shall acknowledge in writing the nature of the violation and agree upon the administrative 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 (2)(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 adjudicating court with a copy to the county attorney of the county where probation was imposed, 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.

(3) Whenever a probation officer has reasonable cause to believe that a juvenile subject to the supervision of a probation officer has violated or is about to violate a condition of probation other than a substance abuse violation or noncriminal violation and that such juvenile will not attempt to leave the jurisdiction and will not place lives or property in danger, the probation officer shall submit a written report to the adjudicating court, with a copy to the county attorney of the county where probation was imposed, outlining the nature of the probation violation.

(4) Whenever a probation officer has reasonable cause to believe that a juvenile subject to the supervision of a probation officer has violated or is about to violate 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.

(5) Immediately after detention pursuant to subsection (4) of this section, the probation officer shall notify the county attorney of the county where probation was imposed and submit a written report of the reason for such detention and of any violation of probation. After prompt consideration of the written report, the county attorney shall:

(a) Order the release of the juvenile from confinement subject to the supervision of a probation officer; or

(b) File with the adjudicating court a motion or information to revoke the probation.

(6) 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, the county attorney may file a motion or information to revoke probation.

(7) 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.

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, or 60-6,197.06 shall not be eligible for an ignition interlock permit.

Source:Laws 2010, LB800, § 24; Laws 2012, LB751, § 5.

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

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 mental retardation, it 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.

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 the petition filed by the county attorney in accordance with section 43-274, 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.

Annotations

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).

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).

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).

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).

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).

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).

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).

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).

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. Abandonment

2. Neglect

3. Mental illness or deficiency

4. Rehabilitation or reunification plan

5. Appeal

6. Miscellaneous

1. Abandonment

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. re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).

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. re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).

Pursuant to subsection (1) of this section, abandonment requires a finding that a parent intentionally withheld 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 Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

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. Under subsection (1) of this section, the question of abandonment is largely one of intent, to be determined in each case from all the facts and circumstances. Under 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 or children. Under subsection (1) of this section, 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. With respect to cases arising under subsection (1) of this section, parental obligation requires a continuing interest in the child and a genuine effort to maintain communication and association with that child. Under subsection (1) of this section, 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).

"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 the opportunity for the display of parental affection for the child. In re Interest of C.A., 235 Neb. 893, 457 N.W.2d 822 (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).

"Abandonment" under 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 the opportunity for the display of parental affection for the child. In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (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).

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, abandonment, for purposes of determining whether termination of parental rights is warranted has been described as 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. 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).

Abandonment, for purposes 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 display of parental affection for the child. In re Interest of Joseph L., 8 Neb. App. 539, 598 N.W.2d 464 (1999).

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).

2. Neglect

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).

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).

One need not have physical possession of a child to demonstrate the existence of the neglect contemplated by this provision. In re Interest of J.N.V., 224 Neb. 108, 395 N.W.2d 758 (1986).

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).

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).

3. Mental illness or deficiency

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).

4. Rehabilitation or reunification plan

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).

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).

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).

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.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).

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).

5. 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).

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).

6. Miscellaneous

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).

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).

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).

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 "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).

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).

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).

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).

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 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).

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).

In order to terminate 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 child's best interests. In re Interest of Joshua R. et al., 265 Neb. 374, 657 N.W.2d 209 (2003).

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).

Two requirements must be met before parental rights may be terminated: requisite evidence must establish the existence of one or more of the circumstances described in subsections (1) to (10) of this section, and 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 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).

In order to terminate 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 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).

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).

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).

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).

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 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).

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).

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).

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).

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).

In order to terminate 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 child's best interests. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004).

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).

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).

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).

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).

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).

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).

The language of this section imposes two requirements before parental rights may be terminated: (1) the existence of one or more conditions listed in this section and (2) the best interests of the child. In re Interest of Azia B., 10 Neb. App. 124, 626 N.W.2d 602 (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).

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).

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).

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).

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

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).

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.

Source:Laws 1998, LB 1041, § 29.

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

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— 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 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).

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. Every such association shall annually, on or before September 15, make a report to the department showing its condition, management, and competency to adequately care for such juveniles as are or may be committed to it and such other facts as the department may require. Upon receiving such report, the department shall provide a copy to the Health and Human Services Committee of the Legislature on or before September 15 of 2012, 2013, and 2014. 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.

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.

43-298. 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 sections 43-407 and 43-416.

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

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).

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).

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.

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 any future charge or petition regarding such juvenile.

Source:Laws 2008, LB1014, § 41.

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; files; how kept; certain reports and records not open to inspection without order of court; exception.

(1) The juvenile court judge shall keep a minute book in which he or she shall enter minutes 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. Juvenile court legal records shall be deposited in files and shall include the petition, summons, notice, certificates or receipts of mailing, minutes of the court, findings, orders, decrees, judgments, and motions.

(2) Except as provided in subsection (3) 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 subsection, confidential record information shall mean 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) Nothing in subsection (3) 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.

(5)(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.

Source:Laws 1981, LB 346, § 65; Laws 1997, LB 622, § 73.

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.

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 (1) released the juvenile without filing a juvenile petition or criminal complaint, (2) offered juvenile pretrial diversion or mediation to the juvenile under the Nebraska Juvenile Code, (3) filed a juvenile court petition describing the juvenile as a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247, (4) 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, or (5) 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 that may be waived.

Source:Laws 2010, LB800, § 26; Laws 2011, LB463, § 6.

43-2,108.02. Sealing of records; notice to juvenile; contents.

For a juvenile described in section 43-2,108.01, the county attorney or city attorney shall provide the juvenile with written notice that:

(1) States in plain language that the juvenile or the juvenile's parent or guardian may file a motion to seal the record with the court when the juvenile has satisfactorily completed the diversion, mediation, probation, supervision, or other treatment or rehabilitation program provided under the Nebraska Juvenile Code or has satisfactorily completed the diversion or sentence ordered by a county court; and

(2) Explains in plain language what sealing the record means.

Source:Laws 2010, LB800, § 27; Laws 2011, LB463, § 7.

43-2,108.03. Sealing of records; county attorney or city attorney; duties; motion to seal record authorized.

(1) 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.

(2) If the county attorney or city attorney offered and a juvenile described in section 43-2,108.01 has agreed to pretrial diversion or mediation, 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 or mediation.

(3) If the juvenile was taken into custody, arrested, cited in lieu of arrest, or referred for prosecution without citation and charges were filed but later dismissed and any required pretrial diversion or mediation for any related charges have been completed and no related charges remain under the jurisdiction of the court, 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 and the court where the charge or petition was filed that the charge or juvenile court petition was dismissed.

(4) Upon receiving notice under subsection (1), (2), or (3) of this section, the government agency or court shall immediately seal all records housed at that government agency or court pertaining to the citation, arrest, record of custody, complaint, disposition, diversion, or mediation.

(5) If a juvenile described in section 43-2,108.01 has satisfactorily completed such juvenile's probation, supervision, or other treatment or rehabilitation program provided under the Nebraska Juvenile Code or has satisfactorily completed such juvenile's diversion or sentence in county court:

(a) The court may initiate proceedings pursuant to section 43-2,108.04 to seal the record pertaining to such disposition or adjudication under the juvenile code or sentence of the county court; and

(b) If the juvenile has attained the age of seventeen years, the court shall initiate proceedings pursuant to section 43-2,108.04 to seal the record pertaining to such disposition or adjudication under the juvenile code or diversion or sentence of the county court, except that the court is not required to initiate proceedings to seal a record pertaining to a misdemeanor or infraction not described in subdivision (4) of section 43-2,108.01 under a city or village ordinance that has no possible jail sentence. Such a record may be sealed under subsection (6) of this section.

(6) If a juvenile described in section 43-2,108.01 has satisfactorily completed diversion, mediation, probation, supervision, or other treatment or rehabilitation program provided under the Nebraska Juvenile Code or has satisfactorily completed the diversion or sentence ordered by a county court, the juvenile or the juvenile's 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 such disposition, adjudication, or diversion of the juvenile court or diversion or sentence of the county court.

Source:Laws 2010, LB800, § 28; Laws 2011, LB463, § 8.

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.

(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 may: (a) Order the record of the juvenile under consideration be sealed without conducting a hearing on the motion; or (b) decide in its discretion to conduct a hearing on the motion. If the court decides in its discretion to conduct a hearing on the motion, the court shall conduct the hearing within sixty days after making that decision and 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.

(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 may order the record of the juvenile that is the subject of the motion be sealed if it finds 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 age of the juvenile;

(b) The nature of the offense and the role of the juvenile in the offense;

(c) The behavior of the juvenile after the disposition, adjudication, diversion, or sentence and the juvenile's response to diversion, mediation, probation, supervision, other treatment or rehabilitation program, or sentence;

(d) The education and employment history of the juvenile; and

(e) Any other circumstances that may relate to the rehabilitation of the juvenile.

(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.

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 pursuant to section 43-2,108.04, 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) to the Nebraska Commission on Law Enforcement and Criminal Justice, (ii) if the record includes impoundment or prohibition to obtain a license or permit pursuant to section 43-287, to the Department of Motor Vehicles, (iii) 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 (iv) 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 what sealing the record means verbally if the juvenile is present in the court at the time the court issues the sealing order or 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.

(2) The effect of having a record sealed under section 43-2,108.04 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 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, and to any attorney representing the subject of the sealed record. 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, or a juvenile detention 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 or the Child Care Licensing Act;

(e) Upon application, by the person who is the subject of the sealed record and by persons authorized by the person who is the subject of the sealed record who are named in that application;

(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, 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 a person 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 web site 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 violates this section may be held in contempt of court.

Source:Laws 2010, LB800, § 30; Laws 2011, LB463, § 10.

Cross References

Child Care Licensing Act, see section 71-1908.

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; transfer of dockets.

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 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.

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 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.

Annotations

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 two hundred thousand inhabitants;

(b) Four judges in counties having at least two hundred thousand inhabitants but less than four 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.

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.

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 43-424 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.

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 paroled;

(2) Committed means an order by a court committing a juvenile to the care and custody of the Office of Juvenile Services for treatment;

(3) Community supervision means the control, supervision, and care exercised over juveniles committed to the Office of Juvenile Services when a commitment to the level of treatment of a youth rehabilitation and treatment center has not been ordered by the court;

(4) Evaluation means assessment of the juvenile's social, physical, psychological, and educational development and needs, including a recommendation as to an appropriate treatment plan;

(5) Parole means a conditional release of a juvenile from a youth rehabilitation and treatment center to aftercare or transferred to Nebraska for parole supervision by way of interstate compact;

(6) Placed for evaluation means a placement with the Office of Juvenile Services or the Department of Health and Human Services for purposes of an evaluation of the juvenile; and

(7) Treatment means type of supervision, care, confinement, and rehabilitative services for the juvenile.

Source:Laws 1998, LB 1073, § 35.

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 state juvenile correctional facilities and programs other than the secure youth confinement facility which is under the control of the Department of Correctional Services. 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 contract with a state agency or private provider to operate any 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.

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, evaluation, treatment, rehabilitation, parole, transfer, and discharge of juveniles placed with or committed to the Office of Juvenile Services;

(5) Ensure that statistical information concerning juveniles placed with or committed to facilities or programs 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. For 2012, 2013, and 2014, the office shall also provide the report to the Health and Human Services Committee of the Legislature on or before September 15. The report shall include an assessment of the administrative costs of operating the facilities, the cost of programming, the savings realized through reductions in commitments, placements, and evaluations, and information regarding the collaboration required by section 83-101;

(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;

(9) Coordinate community-based services for juveniles and their families;

(10) Supervise and coordinate juvenile parole and aftercare services; and

(11) 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.

43-406. Office of Juvenile Services; treatment programs, services, and systems; requirements.

The Office of Juvenile Services shall utilize:

(1) Risk and needs assessment instruments for use in determining the level of treatment for the juvenile;

(2) A case classification process to include levels of treatment defined by rules and regulations and case management standards for each level of treatment. The process shall provide for a balance of accountability, public safety, and treatment;

(3) Case management for all juveniles committed to the office;

(4) A purchase-of-care system which will facilitate the development of a statewide community-based array of care with the involvement of the private sector and the local public sector. Care services may be purchased from private providers to provide a wider diversity of services. This system shall include accessing existing Title IV-E funds of the federal Social Security Act, as amended, medicaid funds, and other funding sources to support eligible community-based services. Such services developed and purchased shall include, but not be limited to, evaluation services. Services shall be offered and delivered on a regional basis;

(5) Community-based evaluation programs, supplemented by one or more residential evaluation programs. A residential evaluation program shall be provided in a county containing a city of the metropolitan class. Community-based evaluation services shall replace the residential evaluation services available at the Youth Diagnostic and Rehabilitation Center by December 31, 1999; and

(6) 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.

43-407. Office of Juvenile Services; programs and treatment services; treatment plan; case management and coordination process; funding utilization; intent.

The Office of Juvenile Services shall design and make available programs and treatment services through the Youth Rehabilitation and Treatment Center-Kearney and Youth Rehabilitation and Treatment Center-Geneva. The programs and treatment services shall be based upon the individual or family evaluation process and treatment plan. The treatment plan shall be developed within fourteen days after admission. If a juvenile placed at the Youth Rehabilitation and Treatment Center-Kearney or Youth Rehabilitation and Treatment Center-Geneva is assessed as needing inpatient or subacute substance abuse or behavioral health residential treatment, the juvenile may be transferred to a program or facility if the treatment and security needs of the juvenile can be met. The assessment process shall include involvement of both private and public sector behavioral health providers. The selection of the treatment venue for each juvenile shall include individualized case planning and incorporate the goals of the juvenile justice system pursuant to section 43-402. Juveniles committed to the Youth Rehabilitation and Treatment Center-Kearney or Youth Rehabilitation and Treatment Center-Geneva who are transferred to alternative settings for treatment remain committed to the Department of Health and Human Services and the Office of Juvenile Services until discharged from such custody. Programs and treatment services shall address:

(1) Behavioral impairments, severe emotional disturbances, sex offender behaviors, and other mental health or psychiatric disorders;

(2) Drug and alcohol addiction;

(3) Health and medical needs;

(4) Education, special education, and related services;

(5) Individual, group, and family counseling services as appropriate with any treatment plan related to subdivisions (1) through (4) of this section. Services shall also be made available for juveniles who have been physically or sexually abused;

(6) 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

(7) 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 May 25, 2007, 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.

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.

43-408. Office of Juvenile Services; committing court; determination of placement and treatment services; review status; when.

(1) Whenever any juvenile is committed under any provision of law to the Office of Juvenile Services, to any facility operated by the Office of Juvenile Services, or to the custody of the Administrator of the Office of Juvenile Services, a superintendent of a facility, or an administrator of a program, the juvenile is deemed committed to the Office of Juvenile Services. Juveniles committed to the Office of Juvenile Services 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 shall order the initial level of treatment for a juvenile committed to the Office of Juvenile Services. Prior to determining the initial level of treatment for a juvenile, the court may solicit a recommendation regarding the initial level of treatment from the Office of Juvenile Services. Under this section, the committing court shall not order a specific placement for a juvenile. The court shall continue to maintain jurisdiction over any juvenile committed to the Office of Juvenile Services until such time that the juvenile is discharged from the Office of Juvenile Services. The court shall conduct review hearings every six months, or at the request of the juvenile, for any juvenile committed to the Office of Juvenile Services who is placed outside his or her home, except for a juvenile residing at a youth rehabilitation and treatment center. The court shall determine whether an out-of-home placement made by the Office of Juvenile Services is in the best interests of the juvenile, with due consideration being given by the court to public safety. If the court determines that the out-of-home placement is not in the best interests of the juvenile, the court may order other treatment services for the juvenile.

(3) After the initial level of treatment is ordered by the committing court, the Office of Juvenile Services shall provide treatment services which conform to the court's level of treatment determination. Within thirty days after making an actual placement, the Office of Juvenile Services shall provide the committing court with written notification of where the juvenile has been placed. At least once every six months thereafter, until the juvenile is discharged from the care and custody of the Office of Juvenile Services, the office shall provide the committing court with written notification of the juvenile's actual placement and the level of treatment that the juvenile is receiving.

(4) For transfer hearings, the burden of proof to justify the transfer is on the Office of Juvenile Services, the standard of proof is clear and convincing evidence, and the strict rules of evidence do not apply. Transfers of juveniles from one place of treatment to another are subject to section 43-251.01 and to the following:

(a) Except as provided in subdivision (b) of this subsection, if the Office of Juvenile Services proposes to transfer the juvenile from a less restrictive to a more restrictive place of treatment, a plan outlining the proposed change and the reasons for the proposed change shall be presented to the court which committed the juvenile. Such change shall occur only after a hearing and a finding by the committing court that the change is in the best interests of the juvenile, with due consideration being given by the court to public safety. At the hearing, the juvenile has the right to be represented by counsel;

(b) The Office of Juvenile Services may make an immediate temporary change without prior approval by the committing court only if the juvenile is in a harmful or dangerous situation, is suffering a medical emergency, is exhibiting behavior which warrants temporary removal, or has been placed in a non-state-owned facility and such facility has requested that the juvenile be removed. Approval of the committing court shall be sought within fifteen days of making an immediate temporary change, at which time a hearing shall occur before the court. The court shall determine whether it is in the best interests of the juvenile to remain in the new place of treatment, with due consideration being given by the court to public safety. At the hearing, the juvenile has the right to be represented by counsel; and

(c) If the proposed change seeks to transfer the juvenile from a more restrictive to a less restrictive place of treatment or to transfer the juvenile from the juvenile's current place of treatment to another which has the same level of restriction as the current place of treatment, the Office of Juvenile Services shall notify the juvenile, the juvenile's parents, custodian, or legal guardian, the committing court, the county attorney, the counsel for the juvenile, and the guardian ad litem of the proposed change. The juvenile has fifteen days after the date of the notice to request an administrative hearing with the Office of Juvenile Services, at which time the Office of Juvenile Services shall determine whether it is in the best interests of the juvenile for the proposed change to occur, with due consideration being given by the office to public safety. The juvenile may be represented by counsel at the juvenile's own expense. If the juvenile is aggrieved by the administrative decision of the Office of Juvenile Services, the juvenile may appeal that decision to the committing court within fifteen days after the Office of Juvenile Services' decision. At the hearing before the committing court, the juvenile has the right to be represented by counsel.

(5) If a juvenile is placed in detention after the initial level of treatment is determined by the committing court, 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 as a treatment service.

(6) The committing court's review of a change of place of treatment pursuant to this section does not apply to parole revocation hearings.

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.

Annotations

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.

Any peace officer, juvenile parole 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 a placement for evaluation or commitment to the Office of Juvenile Services and shall cause the juvenile to be returned to the facility or program or an appropriate juvenile detention facility. For purposes of this section, direct care staff member means any staff member charged with the day-to-day care and supervision of juveniles housed at a facility or program operated directly by the office or security staff who has received training in apprehension techniques and procedures.

Source:Laws 1998, LB 1073, § 42.

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 to committing court.

(1) Every juvenile committed to the Office of Juvenile Services pursuant to the Nebraska Juvenile Code or pursuant to subsection (3) of section 29-2204 shall remain committed until he or she attains the age of nineteen or is legally discharged.

(2) The discharge of any juvenile pursuant to the rules and regulations or upon his or her attainment of the age of nineteen 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 with written notification of the juvenile's discharge within thirty days of 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.

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. Evaluations authorized; costs.

(1) A court may, pursuant to section 43-281, place a juvenile with the Office of Juvenile Services or the Department of Health and Human Services for an evaluation to aid the court in the disposition.

(2) A juvenile convicted as an adult shall be placed with the Office of Juvenile Services for evaluation prior to sentencing as provided by subsection (3) of section 29-2204.

(3) All juveniles shall be evaluated prior to commitment to the Office of Juvenile Services. The court shall not commit such juvenile to the temporary custody of the Office of Juvenile Services prior to disposition. The office may place a juvenile in residential or nonresidential community-based evaluation services for purposes of evaluation to assist the court in determining the initial level of treatment for the juvenile.

(4) During any period of detention or evaluation prior to disposition:

(a) Except as provided in subdivision (4)(b) of this section, the county in which the case is pending is responsible for all detention costs incurred before and after an evaluation period prior to disposition, the cost of delivering the juvenile to the facility or institution for an evaluation, and the cost of returning the juvenile to the court for disposition; and

(b) The state is responsible for (i) the costs incurred during an evaluation unless otherwise ordered by the court pursuant to section 43-290 and (ii) the preevaluation detention costs for any days over the first ten days from the date the evaluation is ordered by the court.

(5) The Office of Juvenile Services and the Department of Health and Human Services are not responsible for predisposition costs except as provided in subdivision (4)(b) of this section.

Source:Laws 1969, c. 814, § 2, p. 3060; Laws 1973, LB 563, § 50; Laws 1993, LB 31, § 49; Laws 1994, LB 988, § 38; R.S.1943, (1994), § 83-4,101; Laws 1998, LB 1073, § 45; Laws 2001, LB 640, § 1.

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).

By its language, the purpose of subsection (4) of this section is to make the State responsible for the costs incurred in evaluating a juvenile under subsection (1) of this section. In the absence of an immediate physical delivery of the juvenile upon adjudication into an evaluation program, detention is an unavoidable precursor of evaluation and is, therefore, part of the evaluation process under this section. In re Interest of Marie E., 260 Neb. 984, 621 N.W.2d 65 (2000).

43-414. Office of Juvenile Services; evaluation powers.

Each juvenile placed for evaluation with the Office of Juvenile Services shall be subjected to medical examination and evaluation as directed by the office.

Source:Laws 1969, c. 814, § 3, p. 3060; Laws 1973, LB 563, § 51; R.S.1943, (1994), § 83-4,102; Laws 1998, LB 1073, § 46.

43-415. Evaluation; time limitation; extension; hearing.

A juvenile placed for evaluation with the Office of Juvenile Services shall be returned to the court upon the completion of the evaluation or at the end of thirty days, whichever comes first. When the office finds that an extension of the thirty-day period is necessary to complete the evaluation, the court may order an extension not to exceed an additional thirty days. The court shall hold a hearing within ten days after the evaluation is completed and returned to the court by the office.

Source:Laws 1969, c. 814, § 5, p. 3060; Laws 1973, LB 563, § 52; Laws 1993, LB 31, § 50; Laws 1994, LB 988, § 39; R.S.1943, (1994), § 83-4,104; Laws 1998, LB 1073, § 47; Laws 2010, LB800, § 32.

43-416. Office of Juvenile Services; parole powers; notice to committing court.

The Office of Juvenile Services shall have administrative authority over the parole function for juveniles committed to a youth rehabilitation and treatment center and may (1) determine the time of release on parole of committed juveniles eligible for such release, (2) fix the conditions of parole, revoke parole, issue or authorize the issuance of detainers for the apprehension and detention of parole violators, and impose other sanctions short of revocation for violation of conditions of parole, and (3) determine the time of discharge from parole. The office shall provide the committing court with written notification of the juvenile's discharge from parole within thirty days of a juvenile being discharged from the supervision of the office.

Source:Laws 1998, LB 1073, § 48; Laws 2011, LB463, § 13.

43-417. Juvenile parole; considerations.

In administering juvenile parole, the Office of Juvenile Services shall consider whether (1) the juvenile has completed the goals of his or her individual 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 parole.

Source:Laws 1998, LB 1073, § 49.

43-418. Parole violations; apprehension and detention; when.

(1) Any juvenile parole officer or peace officer may apprehend and detain a juvenile who is on parole if the officer has reasonable cause to believe that a juvenile has violated or is about to violate a condition of his or her parole and that the juvenile will attempt to leave the jurisdiction or will place lives or property in danger unless the juvenile is detained. A juvenile parole officer may call upon a peace officer to assist him or her in apprehending and detaining a juvenile pursuant to this section. Such juvenile may be held in an appropriate juvenile facility pending hearing on the allegations.

(2) Juvenile parole officers may search for and seize contraband and evidence related to possible parole violations by a juvenile.

(3) Whether or not a juvenile is apprehended and detained by a juvenile parole officer or peace officer, if there is reason to believe that a juvenile has violated a condition of his or her parole, the Office of Juvenile Services may issue the juvenile written notice of the alleged parole violations and notice of a hearing on the alleged parole violations.

Source:Laws 1998, LB 1073, § 50.

43-419. Parole violation; preliminary hearing.

(1) When a juvenile is apprehended and detained for an alleged violation of juvenile parole, he or she shall have a preliminary hearing as soon as practicable and no later than within seventy-two hours of being apprehended and detained. An impartial hearing officer shall conduct the preliminary hearing. The impartial hearing officer shall not be the juvenile parole officer alleging the violation of parole or a witness to the alleged violation. The impartial hearing officer may be an employee of the Office of Juvenile Services, including a supervisor or a juvenile parole officer, other than the parole officer filing the allegations.

(2) The juvenile parolee shall receive notice of the preliminary hearing, its purpose, and the alleged violations prior to the commencement of the hearing. The juvenile parolee may present relevant information, question adverse witnesses, and make a statement regarding the alleged parole violations. The rules of evidence shall not apply at such hearings and the hearing officer may rely upon any available information.

(3) The hearing officer shall determine whether there is probable cause to believe that the juvenile has violated a term or condition of his or her parole and shall issue that decision in writing. The decision shall either indicate there is not probable cause to believe that the juvenile parolee has violated the terms of his or her parole and dismiss the allegations and return the juvenile to parole supervision, or it shall indicate there is probable cause to believe that the juvenile has violated a condition of parole and state where the juvenile will be held pending the revocation hearing. The preliminary hearing officer shall consider the seriousness of the alleged violation, the public safety, and the best interests of the juvenile in determining where the juvenile shall be held pending the revocation hearing.

Source:Laws 1998, LB 1073, § 51.

43-420. Hearing officer; requirements.

Any hearing required or permitted for juveniles in the custody of the Office of Juvenile Services, except a preliminary parole revocation hearing, 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.

43-421. Parole violations; rights of juvenile.

When a juvenile is charged with being in violation of a condition of his or her parole, the juvenile is entitled to:

(1) Notice of the alleged violations of parole at least twenty-four hours prior to a hearing on the allegations. Such notice shall contain a concise statement of the purpose of the hearing and the factual allegations upon which evidence will be offered;

(2) A prompt hearing, within fourteen days after the preliminary hearing, if the juvenile is being held pending the hearing;

(3) Reasonable continuances granted by the hearing officer for the juvenile to prepare for the hearing;

(4) Have his or her parents notified of the hearing and allegations and have his or her parents attend the hearing;

(5) Be represented by legal counsel at the expense of the Department of Health and Human Services unless retained legal counsel is available to the juvenile. The department may contract with attorneys to provide such representation to juveniles charged with parole violations;

(6) Compel witnesses to attend, testify on his or her own behalf, present evidence, and cross-examine witnesses against him or her; and

(7) Present a statement on his or her own behalf.

Source:Laws 1998, LB 1073, § 53.

43-422. Parole violation; waiver and admission.

After receiving notice of the allegations of a violation of parole, being notified of the possible consequences, being informed of his or her rights pertaining to the hearing, and having an opportunity to confer with his or her parents or precommitment custodian and legal counsel, if desired, the juvenile may waive his or her right to a hearing and admit to the allegations. Such waiver and admission shall be in writing and submitted, together with a recommended disposition by the hearing officer, to the Administrator of the Office of Juvenile Services or his or her designee.

Source:Laws 1998, LB 1073, § 54.

43-423. Parole violation hearing; requirements; appeal.

At the parole violation hearing, the hearing officer shall again advise the juvenile of his or her rights and ensure that the juvenile has received the notice of allegations and the possible consequences. Strict rules of evidence shall not be applied. The hearing officer shall determine whether the detention of the juvenile or other restrictions are necessary for the safety of the juvenile or for the public safety and shall indicate to what extent the juvenile will continue to be detained or restricted pending a final decision and administrative appeal. The hearing officer shall issue a written recommended disposition to the Administrator of the Office of Juvenile Services or his or her designee who shall promptly affirm, modify, or reverse the recommended disposition. The final decision of the administrator or his or her designee may be appealed pursuant to the Administrative Procedure Act. The Department of Health and Human Services shall be deemed to have acted within its jurisdiction if its action is in the best interests of the juvenile with due consideration being given to public safety. The appeal shall in all other respects be governed by the Administrative Procedure Act.

Source:Laws 1998, LB 1073, § 55.

Cross References

Administrative Procedure Act, see section 84-920.

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.

43-501. 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 allowance; 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 state warrant, and the amount of payments shall not exceed three hundred dollars per month when there is but one dependent child and one eligible caretaker in any home, plus an additional seventy-five dollars per month on behalf of each additional eligible person. 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.

(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.

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 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 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.

Cross References

Income Withholding for Child Support Act, see section 43-1701.

Uniform Interstate Family Support Act, see section 42-701.

Annotations

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.

(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 child, 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.

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.

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.

(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, or lottery 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.

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.

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. For purposes of this section, a person who has been incarcerated for a period of one year or more in a county or city jail or a federal or state correctional facility shall be considered to have an involuntary reduction of income unless (i) the incarceration is a result of a conviction for criminal nonsupport pursuant to section 28-706 or a conviction for a violation of any federal law or law of another state substantially similar to section 28-706, (ii) the incarcerated individual has a documented record of willfully failing or neglecting to provide proper support which he or she knew or reasonably should have known he or she was legally obligated to provide when he or she had sufficient resources to provide such support, or (iii) the incarceration is a result of a conviction for a crime in which the child who is the subject of the child support order was victimized; 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 department, a county attorney, or an authorized attorney shall not in any case be responsible for reviewing or filing an application to modify child support for individuals incarcerated as described in subdivision (1)(b) of this section.

(3) 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.

(4) 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.

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.

(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.

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 sections 43-532 to 43-534 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.

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.

43-534. Family policy; annual statement required.

Every department, agency, institution, committee, and commission of state government which is concerned or responsible for children and families shall submit, as part of the annual budget request of such department, agency, institution, committee, or commission, a comprehensive statement of the efforts such department, agency, institution, committee, or commission has taken to carry out the policy and principles set forth in sections 43-532 and 43-533. For 2012, 2013, and 2014, the Department of Health and Human Services shall provide a copy of its statement submitted under this section to the Health and Human Services Committee of the Legislature on or before September 15. The statement shall include, but not be limited to, a listing of programs provided for children and families and the priority of such programs, a summary of the expenses incurred in the provision and administration of services for children and families, the number of clients served by each program, and data being collected to demonstrate the short-term and long-term effectiveness of each program.

Source:Laws 1987, LB 637, § 3; Laws 2012, LB1160, § 13.

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 to 43-534. 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.

43-536. Child care reimbursement; market rate survey; adjustment of rate.

In determining the rate of reimbursement for child care, the Department of Health and Human Services shall conduct a market rate survey of the child care providers in the state. The department shall adjust the reimbursement rate for child care every odd-numbered year at a rate not less than the sixtieth percentile and not to exceed the seventy-fifth percentile of the current market rate survey, except that (1) nationally accredited child care providers may be reimbursed at higher rates and (2) for the two fiscal years beginning July 1, 2011, such rate may not be less than the fiftieth percentile or the rate for the immediately preceding fiscal year.

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.

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. Guardianship; care; placement; duties of department; contracts; payment for maintenance.

(1) The Department of Health and Human Services shall be the legal guardian 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 guardianship of the department shall cease. Thereafter the child shall be entitled to his or her own earnings. Guardianship of and services by the department shall never extend beyond the age of majority, except that services by the department to a child shall continue until the child reaches the age of twenty-one if the child is a student regularly attending a school, college, or university or regularly attending a course of vocational or technical training designed to prepare such child for gainful employment.

(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 guardianship of the department shall then cease.

(5) Whenever permanent free homes for the children cannot be obtained, the department shall have the authority to provide and pay for the maintenance of the children in private families, in foster care, in guardianship, 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.

Cross References

Foster Parent Liability and Property Damage Fund, see section 43-1320.

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 43-104.25, 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 43-104.25.

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.

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.

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.

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.

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

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— 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).

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.

(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.

Annotations

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).

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).

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

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.

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.

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.

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 home, group home, child care facility, public agency, private agency, or any other person or entity receiving and caring for foster children;

(4) Foster care placements means all placements of juveniles as described in subdivision (3)(b) of section 43-247, placements of neglected, dependent, or delinquent children, including those made directly by parents or by third parties, and placements of children who have 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;

(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) Child-caring agency has the definition found in section 71-1902;

(9) Child-placing agency has the definition found in section 71-1902; and

(10) Siblings means biological siblings and legal siblings, including, but not limited to, half-siblings and stepsiblings.

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.

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)(a) 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, 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 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, (i) determine key issues of the foster care system and ways to resolve the issues and to otherwise improve the system and (ii) make policy recommendations.

(b) All equipment and effects of the State Foster Care Review Board on July 1, 2012, shall be transferred to the Foster Care Review Office, and all staff of the board, except the executive director and interim executive director, shall be transferred to the office. The State Foster Care Review Board shall terminate on July 1, 2012. Beginning on July 1, 2012, the data coordinator of the board, as such position existed prior to such date, shall serve as the executive director of the office until the Foster Care Advisory Committee hires an executive director as prescribed by this section. It is the intent of the Legislature that the staff of the board employed prior to July 1, 2012, shall continue to be employed by the office until such time as the executive director is hired by the committee.

(c) It is the intent of the Legislature that the funds appropriated to the State Foster Care Review Board be transferred to the Foster Care Review Office for FY2012-13.

(2)(a) The Foster Care Advisory Committee is created. The committee shall have five members appointed by the Governor. 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 child-caring agency, a child-placing agency, or a court.

(b) The Governor shall appoint three members from a list of twelve local board members submitted by the Health and Human Services Committee of the Legislature, one member from a list of four persons with data analysis experience submitted by the Health and Human Services Committee of the Legislature, and one member from a list of four persons who are residents of the state and are representative of the public at large submitted by the Health and Human Services Committee of the Legislature. 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 initial members and 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 in the same manner as the original appointments 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 their actual and necessary 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.

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; duties.

(1) The office shall maintain the statewide register of all foster care placements occurring within the state, and there shall be a monthly 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 monthly report shall consist of identifying information, placement information, and the plan or permanency plan developed by the person or court in charge of the child pursuant to section 43-1312. The department 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, social security number, date of birth, gender, race, and religion;

(b) Identification information for parents and stepparents, including name, social security number, address, and status of parental rights;

(c) Placement information, including initial placement date, current placement date, and the name and address of the foster care provider;

(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;

(f) Case worker; and

(g) Permanency plan objective.

(2)(a) The 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. Such reports shall include (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) 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

(vi) 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) The office shall report and make recommendations to the Legislature, department, local boards, and county welfare offices. 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. In addition, the office shall provide copies of such reports and recommendations to each court having the authority to make foster care placements. 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. The executive director shall also provide, at a time specified by the Health and Human Services Committee of the Legislature, regular updates regarding child welfare data and information at least quarterly, and a fourth-quarter report which shall be the annual report. The executive director shall include issues, policy concerns, and problems which have come to the office and the executive director from analysis of the data. The executive director shall recommend alternatives to the identified problems and related needs of the office and the foster care system to the committee. The Health and Human Services Committee shall coordinate and prioritize data and information requests submitted to the office by members of the Legislature. The annual report of the office shall be completed by December 1 each year, beginning December 1, 2012.

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.

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. Members of local boards serving on July 1, 2012, shall continue to serve the unexpired portion of their terms. 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 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.

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.

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. Repealed. Laws 2012, LB 998, § 20.

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.

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.

Cross References

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

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, or upon the request of the Department of Health and Human Services, any records pertaining to a case assigned to the department, shall be furnished to the office or designated local board or department by the agency charged with the child or any public official or employee of a political subdivision having relevant contact with the child. Upon the request of the 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.

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, 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. 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.

43-1311.02. Placement of child and siblings; sibling visitation or ongoing interaction; motions authorized; court review; department; duties.

(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.

(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.

(3) Parties to the case may file a motion for joint-sibling placement, sibling visitation, or ongoing interaction between siblings.

(4) The court shall periodically review and evaluate the effectiveness and appropriateness of the joint-sibling placement, sibling visitation, or ongoing interaction between siblings.

(5) 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.

(6) 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.

Source:Laws 2011, LB177, § 7.

43-1311.03. Written independent living transition proposal; development; contents; transition team; department; duties.

(1) When a child placed in foster care turns sixteen years of age or enters foster care and is at least sixteen 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 adulthood. The transition proposal shall be personalized based on the child's needs. The transition proposal shall include, but not be limited to, the following needs:

(a) Education;

(b) Employment services and other workforce support;

(d) Financial assistance, including education on credit card financing, banking, and other services;

(e) Housing;

(f) Relationship development; and

(g) 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.

(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.

(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.

(4) The final transition proposal prior to the child's leaving foster care shall specifically identify how the need for housing will be addressed.

(5) 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.

(6) On or before the date the child reaches nineteen years of age, the department shall provide the child 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. All fees associated with securing the certified copy shall be waived by the state.

Source:Laws 2011, LB177, § 8.

43-1312. Plan or permanency plan for foster child; contents; investigation; hearing.

(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; and

(f) The name of the school the child shall attend as provided in section 43-1311.

(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, 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 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.

Source:Laws 1982, LB 714, § 12; Laws 1998, LB 1041, § 40; Laws 2008, LB1014, § 45; Laws 2011, LB177, § 5.

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).

43-1313. Review of dispositional order; when; procedure.

When a child is in foster care, 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 included in the 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.

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

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 web site 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 43-1318 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.

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 1999, LB 9, § 1.

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

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).

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).

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).

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 jurisdi