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In re Interest of Landon H.

Supreme Court of Nebraska

December 27, 2013

In re Interest of Landon H., a child under 18 years of age.
v.
Bonnie H., appellant. State of Nebraska, appellee,

Page 370

Appeal from the Separate Juvenile Court of Lancaster County: TONI G. THORSON, Judge. Vacated and remanded with direction.

David P. Thompson, of Thompson Law, P.C., L.L.O., for appellant.

Joe Kelly, Lancaster County Attorney, and Daniel Zieg for appellee.

Heavican, C.J., Wright,Connolly, Stephan, McCormack, Miller-Lerman, and Cassel,JJ.

Syllabus by the Court

1. Constitutional Law: Due Process: Appeal and Error. Whether the procedures given an individual comport with constitutional requirements for procedural due process presents a question of law, which an appellate court independently reviews.

2. Constitutional Law: Parental Rights: Due Process. Because of a natural parent's fundamental liberty interest in the care, custody, and management of their child, if the State intervenes to adjudicate a child or terminate the parent-child relationship, its procedures must meet the requisites of the Due Process Clause.

3. Juvenile Courts: Parental Rights: Due Process. A juvenile court order that terminates parental rights through procedures that violate the parent's due process rights is void.

4. Constitutional Law: Due Process. Procedural due process requires notice to the person whose right is affected by the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the Constitution or statutes; and a hearing before an impartial decisionmaker.

5. Juvenile Courts: Parental Rights: Right to Counsel. In juvenile proceedings, Neb.Rev.Stat. § 43-279.01(1)(b) (Reissue 2008) gives a parent the right to appointed counsel if the parent cannot afford an attorney.

6. Juvenile Courts: Parental Rights: Due Process. When a juvenile court knows that a parent is incarcerated or confined nearby, it should take steps, without request, to afford the parent due process before adjudicating a child or terminating the parent's parental rights.

[287 Neb. 106] 7. Juvenile Courts: Parental Rights: Attorney and Client: Notice. A juvenile court may not assume that a parent has avoided communications with his or her attorney unless the attorney shows that he or she has made diligent efforts to serve notice to the parent of the attorney's

Page 371

intent to withdraw from the representation.

8. Juvenile Courts: Parental Rights: Right to Counsel: Due Process. Absent circumstances showing that a parent has avoided contact with his or her attorney, a juvenile court must respect the parent's due process right to representation by an attorney.

Connolly, J.

SUMMARY

The juvenile court allowed the attorney for the appellant, Bonnie H., to withdraw at the start of a default hearing to terminate Bonnie's parental rights without requiring the attorney to show that he gave notice to Bonnie of his intent to withdraw. We conclude that the court's ruling denied Bonnie due process and constituted plain error. We vacate the court's order and remand the cause with direction.

BACKGROUND

In October 2011, Bonnie was ingesting narcotics in a parked vehicle with a male companion. Landon H., who was then age 2, was asleep in the back seat. Police officers arrested Bonnie and took Landon into emergency custody. Landon's father, Shawn H., was incarcerated at the time. Landon was later placed with foster parents. He has reactive attachment disorder and behavioral problems. Bonnie has a history of substance [287 Neb. 107] abuse and had previously relinquished her parental rights for her two other children.

The court appointed counsel for Bonnie in November 2011. At the first adjudication hearing in December, Bonnie's counsel appeared without her to deny the allegations. The court continued the hearing. In January 2012, Bonnie appeared and pleaded no contest to the State's allegation that she had cocaine on her person when the police searched her. The court adjudicated Landon under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2008) because of parental neglect. The juvenile court's rehabilitation plan required Bonnie to cooperate with drug treatment and testing, obtain a legal means of ...


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