In re Interest of Brianna B. and Mariella B.

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In re Interest of Brianna B. and Mariella B.

Caselaw No.
21 Neb. App. 657, A-13-054 & A-13-055
Filed on
Tuesday, January 14, 2014


SUMMARY: Juvenile court properly issued letters of guardianship where it was clear from the context of the order and the proceedings that the court intended to establish a guardianship. In addition, the juvenile court does have authority to create a visitation plan for children in guardianship arrangements when visitation is in the children’s best interest.
 

The State of Nebraska removed Mariella and Brianna from their mother, May Lynn, in February of 2008. A guardian ad litem was appointed for May Lynn, and the children were adjudicated following May Lynn’s no contest plea in July of 2008. The original permanency goal was reunification. In May of 2009, the permanency goal was changed to reunification concurrent with guardianship, and changed to guardianship in October of 2009 because May Lynn was not making progress in addressing the issues that led to the adjudication. The permanency goal remained guardianship for several years while an appropriate and willing guardian was sought for the girls. May Lynn continued to object to the plan of guardianship and to ask for increased visitation. The State moved to appoint a guardian in July of 2012 after evidence that the girls were doing well in their current placement. Following a hearing, the juvenile court issued order approving guardianships in December of 2012, stating DHHS should “commence filing its Petition for the Appointment of a Guardian for Mariella…. and Brianna. . . . Following the entry of an Order approving the Guardianship and the acceptance by the proposed guardians, DHHS and all court-appointed attorneys shall be dismissed.” The juvenile court also declined to order visitation with May Lynn because it claimed it lacked statutory authority to order visitation.

The Nebraska Court of Appeals held the letters of guardianship were not issued in violation of May Lynn’s constitutional right to procedural due process. Though the language in the court’s December, 2012 order was confusing, it was clear from the context of the order and the proceedings that the juvenile court intended to sustain guardianship and issue the letters. In addition, the juvenile court is not required to follow probate code procedures for establishing guardianship. The juvenile court provided May Lynn was ample notice of the impending guardianship because the permanency goal was guardianship for several years prior to the hearing. However, the juvenile court did err in finding it lacked authority to order visitation for May Lynn. Though no statute explicitly gives the juvenile court authority to order visitation in guardianship arrangements, the purpose of the court is to protect and promote the welfare of children and powers must be liberally construed to carry out this purpose. The juvenile court retains the authority to create visitation arrangements when the children are in a guardianship arrangement when it is in the children’s best interests because the juvenile court retains jurisdiction over the children. The case was reversed in part and remanded to determine May Lynn’s visitation rights.