Nebraska Revised Statute 43-285

Revised Statutes » Chapter 43 » 43-285
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43-285. Care of juvenile; duties; 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. Any such association and the department shall be responsible for applying for any health insurance available to the juvenile, including, but not limited to, medical assistance under the Medical Assistance Act. Such guardianship shall not include the guardianship of any estate of the juvenile.

(2)(a) This subdivision applies until October 1, 2013. 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 plan shall include a statement regarding the eligibility of the juvenile for any health insurance, including, but not limited to, medical assistance under the Medical Assistance Act. The health and safety of the juvenile shall be the paramount concern in the proposed plan. When the plan includes the provision of services in order that the juvenile can remain in his or her home and such services are to prevent out-of-home placement, the plan shall be prepared and shall clearly state that the services described in the plan are to prevent placement and that, absent preventive services, foster care is the planned arrangement for the child. 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 and, for eligible juveniles, the Young Adult Voluntary Services and Support Act. 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.

(b) This subdivision applies beginning October 1, 2013. Following an adjudication hearing at which a juvenile is adjudged to be under subdivision (3)(a) or (c) of section 43-247, the court may order the department to prepare and file with the court a proposed plan for the care, placement, services, and permanency which are to be provided to such juvenile and his or her family. The health and safety of the juvenile shall be the paramount concern in the proposed plan. 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 and, for eligible juveniles, the Young Adult Voluntary Services and Support Act. 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. Every six months, the report shall provide an updated statement regarding the eligibility of the juvenile for health insurance, including, but not limited to, medical assistance under the Medical Assistance Act. The department, 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;
    Laws 2013, LB216, § 15;
    Laws 2013, LB269, § 1;
    Laws 2013, LB561, § 22.

Cross References

    Foster Care Review Act, see section 43-1318.
    Medical Assistance Act, see section 68-901.
    Young Adult Voluntary Services and Support Act, see section 43-4501.

Annotations

1. Authority of the court

2. Termination of parental rights

3. Standing

4. Expedited review

5. Miscellaneous

1. Authority of the court

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).

In the exercise of its jurisdiction over a custody modification proceeding, a county court sitting as a juvenile court cannot permanently modify child custody through the mere adoption of a case plan pursuant to subsection (2) of this section. In re Interest of Ethan M., 18 Neb. App. 63, 774 N.W.2d 766 (2009).

In order for a court to disapprove of a plan proposed by the Department of Health and Human Services under this section, a party must prove by a preponderance of the evidence that the department's plan is not in the child's best interests. In re Interest of A.W. et al., 16 Neb. App. 210, 742 N.W.2d 250 (2007).

Subsection (1) of this section gives the court the power to assent and, by implication, to dissent from the placement and other decisions of the Nebraska Department of Health and Human Services, as well as of other entities to whom the court might commit the care of a minor. In re Interest of Veronica H., 14 Neb. App. 316, 707 N.W.2d 29 (2005).

2. Termination of parental rights

Because statutory provisions do not overcome constitutional rights, the provisions of subsection (6) of this section do not apply to proceedings brought under the Nebraska Juvenile Code to terminate parental rights. Despite subsection (6) of this section, the hearsay report of the State Foster Care Review Board is not necessarily admissible in a hearing on termination of parental rights. In re Interest of Constance G., 254 Neb. 96, 575 N.W.2d 133 (1998).

Where a proceeding to obtain the juvenile court's assent to the medical services determined by the department under subsection (1) of this section results in the functional equivalent of a proceeding to terminate parental rights, the same due process must be afforded in the assent proceeding as is required in a proceeding to terminate parental rights. In re Interest of Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997).

Where the department's determination under subsection (1) of this section is likely to result in the juvenile's death, the juvenile court's assent is the functional equivalent of a judgment terminating parental rights. In re Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997).

3. Standing

Pursuant to subsection (4) of this section (now subsection (5) of this section), the Department of Social Services acquires standing as a party only after a juvenile has been placed in its care. In re Interest of Archie C., 250 Neb. 123, 547 N.W.2d 913 (1996).

Foster parents are interested parties for the purposes of this section. Foster parents have standing to participate in foster care placement review hearings. In re Interest of Jorius G. & Cheralee G., 249 Neb. 892, 546 N.W.2d 796 (1996).

This section provides standing for the Department of Social Services to file any pleading or motion or to seek review or relief, when the juvenile court orders a juvenile to the care of the department. In re Interest of C.G. and G.G.T., 221 Neb. 409, 377 N.W.2d 529 (1985).

4. Expedited review

Standing alone, subsection (2) of this section appears to entitle the Department of Social Services to obtain an expedited review in any case; however, its reach is limited by the requirements set forth in sections 43-287.01 and 43-287.03, which require the application of a disjunctive test: First, the order must implement a different plan than that proposed by the department. Second, there must exist a belief in the department that the court-ordered plan is not in the best interests of the juvenile. Where this test is met, expedited review is the sole avenue of review available to the department. In re Interest of M.J.B., 242 Neb. 671, 496 N.W.2d 495 (1993).

Pursuant to subsection (3) of this section, although the language of this section appears to authorize an expedited review in any case, its reach is limited by the requirements set forth in sections 43-287.01 and 43-287.03. In re Interest of Tanisha P. et al., 9 Neb. App. 344, 611 N.W.2d 418 (2000).

5. Miscellaneous

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).