Amoria M.: 1184 Treatment Team Speaks, Courts Listen

In Amoria, the Court of Appeals affirmed the juvenile court’s retention of jurisdiction despite a request by HHS to terminate jurisdiction. The Court of Appeals found NRS 43-246 created for children a right to “a safe and stable living environment”, the permanency goal of stability had not been achieved, and because that goal was “material to the conditions giving rise” to the case, the trial court acted within its discretion in retaining jurisdiction.

Amoria and her eight siblings were removed from their home because it was utterly unsafe: There were holes in the walls, open outlets, open light-switch boxes, and containers of human waste due to a malfunctioning septic tank. There had been no gas or running water in the home for nearly a year. Three dogs, 4 cats, 2 rabbits, 12 caged mice, 2 salamanders, and 1 lizard, all unlicensed, were in the home. When interviewed by a psychologist several months after the children were removed, Amoria’s father stated the house in that condition presented no danger to the children.

The parents admitted the petition alleging their house had been in a filthy unwholesome condition when the children were removed, and the juvenile court took jurisdiction of the family. At disposition, the state produced evidence of three prior reports of neglect: 1990—severe diaper rash on the oldest child shortly after his birth; 1994—cockroaches, dirty diapers and clothes on the floor; 1998—home infested with roaches. The court continued the children in foster care, where they remained for approximately nine months. From the time the children were removed until the hearing giving rise to this appeal—a period of more than two years—Amoria’s parents were chronically unable to pay rent and utility bills, and relied on DHHS to pay those bills several times. Even though eventually court ordered to do so, they failed to apply for available financial assistance. Her parents failed to maintain employment, despite apparently being employable. They failed to participate in recommended counseling.

Twenty-one months after the children were removed, and twelve months after the children were returned home, DHHS said it would ask the court to terminate its jurisdiction after four more months of supervision. The trial court, troubled by this plan, referred the case to the Douglas County Treatment Team for its review and recommendations. The Treatment Team submitted a report and its recommendations. The report concluded that Amoria’s parents had failed to provide economic stability, which had been a contributing cause of the children’s neglect. The Treatment Team recommended jurisdiction be retained until the parents had demonstrated their ability to provide stability for the children for six months.

When four months elapsed, the department requested termination of jurisdiction, based on an absence of any present maltreatment or safety concerns. The trial court adopted the Treatment Team’s recommendation that jurisdiction be maintained until the parents could demonstrate their ability to provide stability for the children. No minimum length of stability was included in the requirement. The State appealed that refusal to terminate jurisdiction to a three-judge panel, which affirmed the trial court. The State then appealed to the Court of Appeals.

In February of 2007, nearly three years since Amoria and her siblings were removed from their home, the Court of Appeals affirmed the decision of the three-judge panel. The Court found because Amoria’s parents had “failed to meet the permanency objective of maintaining steady employment and housing, . . . terminating jurisdiction would not be in the children’s best interests.” 

The Court also held the trial court’s renewal of the rehabilitation plan, in new orders issued approximately every 3 months, meant the trial court had not exceeded the maximum statutorily permitted duration (one year) for conditions imposed pursuant to NRS 43-288.

Though Amoria was unpublished, the Court of Appeals very recently published another opinion affirming the trial court’s refusal to terminate jurisdiction requested by DHHS. In Vincent P.3, the juvenile court denied the department’s request to terminate jurisdiction, finding that the minor (adjudicated as a sex offender) had not completed sexual offender treatment:

We are unaware of any authority which supports the suggestion that ordering age-appropriate sex offender therapy for a juvenile who was adjudicated as having sexually assaulted a 5-year-old boy is an abuse of discretion. Vincent at 445

Veronica H. and Vincent P.: the juvenile court flexes its muscle

In Veronica H.4, the Nebraska Supreme Court decided that a juvenile court has the authority to order DHHS to assign a case manager with particular experience. That authority is granted by the legislature in NRS 43-247(5) [court has jurisdiction over parent, guardian, or custodian] and 43-285 [court may assent to case plan proposed by DHHS, modify that plan, order a new plan be proposed or implement another plan]. The Supreme Court found these statutes granted the juvenile court discretion to order the removal of a case manager when that removal is in a child’s best interests.

The Court of Appeals recently affirmed the juvenile court’s order requiring DHHS to cease using a therapist.5 The therapist—retained by DHHS to provide sexual offender therapy to the youth—said in her report she could not understand why the minor (who had been adjudicated and whose adjudication was affirmed on appeal) “had been made a State ward.”  The Court of Appeals found that the trial court did not abuse its discretion in entering that order.

Read together, Amoria M., Veronica H. and Vincent P. seem to tell us: Children have rights not only to safety but also to stability, and the juvenile court has the ultimate duty and authority enforce those rights. The juvenile court’s enforcement authority includes the power to order the executive branch—when it is a child’s custodian or guardian—to take steps necessary to implement those rights. Those steps include (but surely are not limited to) replacing a case manager, ordering the replacement of a therapist and maintaining jurisdiction over the objection of DHHS.

Sharae H.6, Ty & Devon M.7, Heather G.8: latitude of rehabilitation plans

These cases describe the permissible scope of goals and tasks contained in rehabilitation plans: They must be reasonably related to the establishment of an environment that provides children with safety and stability. That scope will evidently be liberally interpreted to further the goals of the juvenile code. For instance, in Heather G., the only ground for adjudication was the existence of an unconfined boa snake. The case plan approved by the Court of Appeals consisted of goals and tasks directed toward the parents' use of alcohol and drugs, lack of suitable housing, lack of cleanliness, lack of parenting skills, and possible child abuse or neglect. The Nebraska Supreme Court, in Ty & Devon M., found goals and tasks concerning marital counseling, mental health counseling, anger management skills, domestic violence counseling, and parenting skills to be reasonably related to an adjudication based on an unsafe and unsanitary home. Sharae H. was found to be within the juvenile court’s jurisdiction due to the presence of drugs and drug paraphernalia. The case plan required Sharae’s father to submit to a psychological evaluation, complete a substance abuse self-assessment and prohibited him from having contact with Sharae's placement. The Court of Appeals found those tasks “clearly material and relevant” to her father’s ability to provide a safe home.

Bottom Line: Safety and Stability for Children

While there is a certain amount of tension inherent in the court-agency relationship, they share a statutory duty to insure safety and stability for abused, neglected or dependent children in the state’s care. Nebraska appellate courts have demonstrated they will extend DHHS a good deal of latitude when reviewing case plans. So long as the DHHS can demonstrate some reasonable relationship between a proposed goal or task and the basis of adjudication, the goal or task should be approved. However, should the court determine the DHHS plan does not insure safety or stability, it has the authority and the duty to fashion a rehabilitation plan that will provide or lead to that safety and stability. When these counter-balanced branches of government are prudent in the exercise of legislatively granted powers, children in the care of Nebraska’s government will receive the safe and stable lives to which they are entitled.

{moscomment}