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Nebraska Advance Sheets Anthony K. v. State

Supreme Court of Nebraska

November 21, 2014

NEBRASKA ADVANCE SHEETS ANTHONY K.
v.
STATE

Page 803

Appeal from the District Court for Douglas County: J Russell Derr, Judge.

Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for appellants.

Jon Bruning, Attorney General, and John L. Jelkin for appellees.

Heavican, C.J., Wright, Connnnolly, Stephan, McCormack, and Miller-Lerman, JJ., and Bishop, Judge.

OPINION

Page 804

[289 Neb. 524] Wright, J.

I. NATURE OF CASE

This action was brought under 42 U.S.C. § 1983 (2012) by Anthony K. and Arva K., individually and as guardians and next friends on behalf of their seven minor children. The plaintiffs sued the State of Nebraska, the Department of Health and Human Services (DHHS), 18 DHHS employees

Page 805

in their official and individual capacities, and the children's guardian ad litem. The plaintiffs sought general and special damages for a violation of their constitutionally protected rights to familial integrity, due process, and equal protection. They challenged the constitutionality of Neb. Rev. Stat. § § 43-283.01 and 43-1312 (Cum. Supp. 2012) and asked the Douglas County District Court to temporarily and permanently enjoin the application of the statutes in the State of Nebraska and strike them down. This is the first of two related cases filed by the plaintiffs.

Upon the defendants' motion to dismiss, the district court concluded that only the State had been properly served and it dismissed all the remaining defendants for lack of proper service. At that time, the court also determined that the State was entitled to sovereign immunity as to the plaintiffs' § 1983 claims that requested monetary damages. As to the plaintiffs' remaining causes of action against the State, the court sustained the State's motion for summary judgment and dismissed the plaintiffs' complaint. For the reasons discussed below, we affirm the dismissal of the plaintiffs' complaint.

II. SCOPE OF REVIEW

The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court. [289 Neb. 525] In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

A district court's grant of a motion to dismiss is reviewed de novo. Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236 (2013).

We review de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing all reasonable inferences for the nonmoving party. Michael E. v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Cartwright v. State, 286 Neb. 431, 837 N.W.2d 521 (2013).

III. FACTS

1. Juvenile Case

On February 12, 2000, the plaintiffs left their oldest three minor children, Ashley K.; Anthony K., Jr. (Anthony Jr.); and Ali K., unattended for 1 to 2 hours. Anthony notified authorities that the children had been left alone. Following the incident, the children were removed from the family home by police. During the pendency of the juvenile case involving Ashley, Anthony Jr., and Ali, four other children were born to the plaintiffs. None of the other children were removed from the home and were not the subjects of the juvenile case.

On February 14, 2000, a petition was filed in the Lancaster County Separate Juvenile Court alleging that Ashley, Anthony Jr., and Ali lacked proper parental care by reason of the fault or habits of the plaintiffs. Richard Bollerup was appointed as the guardian ad litem for the minor children. Eighteen DHHS caseworkers, case managers, or administrators were involved in the case at various times over the next 9 years.

As part of the reunification plan, the court ordered Anthony to undergo intensive outpatient therapy for substance abuse, ordered the family to participate in family therapy, and ordered the plaintiffs to maintain a safe and stable home for the [289 Neb. 526] children. The plaintiffs were granted

Page 806

visitation three times a week, which included overnight visits.

On May 25, 2000, the children were placed back in the plaintiffs' home. Initial case closure was scheduled for April 2001. In March 2001, the plaintiffs were evicted from their residence. Arva temporarily separated from Anthony and moved into a city mission in Lincoln, Nebraska, with the children. DHHS staff reported at this time that the plaintiffs were not participating in services consistently, Ashley had been late or absent from school, and Anthony had not entered alcohol treatment. On March 28, a hearing was held and the juvenile court ordered that the three oldest children be removed from the home and that Anthony be subject to random alcohol screenings. The new goal for case closure was set for October 2002, but was later extended to April 2003.

The children continued to remain in out-of-home placement due to the " 'lack of compliance with the plan as ordered by the Court.'" This included Anthony's failure to show completion of alcohol treatment and the plaintiffs' continued need to further demonstrate stability in their living situation. Case closure was extended to September 2003, then to February and December 2004, and finally to March 2005. Each time, the stated reasons were because Anthony failed to show completion of substance abuse treatment and the plaintiffs failed to show a stable living situation.

The plaintiffs attempted to complete the requirements DHHS set forth in its plan for reunification. Anthony completed an alcohol treatment program, but could not produce a certificate for the court because he could not afford to pay the final bill. The continued reasons for out-of-home placement of the three minor children included Anthony's failing to produce the certificate of completion for his alcohol dependency program and neither Anthony's nor Arva's having a valid driver's license, as well as the plaintiffs' not having a big enough car for all their children, not participating in therapy to DHHS' satisfaction, and not complying with the plan for reunification. Anthony continually tested negative for drugs [289 Neb. 527] and alcohol, although he was cited for driving while under the influence.

In July 2005, the plaintiffs attended a meeting with Todd Reckling and Chris Peterson, administrators at DHHS. At the meeting, Reckling and Peterson apologized for the length of time for the case and informed the plaintiffs that they needed to act quickly to reunify their family or the Lancaster County Attorney was going to file a motion to terminate their parental rights. On July 14, the Lancaster County Attorney filed a motion to terminate the plaintiffs' parental rights. DHHS employees recommended that the children be returned to the family home.

In 2006, a Foster Care Review Board report recommended reunification, noting that " 'case manager turnover, changes in visitation schedules and in the permanency objective being sought appear[ed] to have been more detrimental to the children than if reunification had occurred'" and that those issues had " 'as much impact on the children's prolonged time in care as the parent's lack of progress.'" However, it also noted that the plaintiffs' lack of participation in services had contributed to the children's remaining in out-of-home placement.

In 2006, Ashley, Anthony Jr., and Ali were sent to South Carolina to live with their grandparents. The plaintiffs initially agreed to a guardianship with the grandparents, but later did not agree to the guardianship, stating they were pressured into ...


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