In re Interest of Marcos S. A. and Andres S.

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In re Interest of Marcos S. A. and Andres S.

Caselaw No.
19 Neb. App. 426
Filed on
Tuesday, December 20, 2011


SUMMARY: An impromptu ruling granting custody of the children to the mother based in part because father would be incarcerated until at least 2013 did not satisfy statutory requirements for notice and opportunity to be heard.

Marcos Jr., DOB 12/06, was removed from the home of unmarried parents Jennifer and Marcos. Marcos was arrested in February 2009 and sentenced to an 8-10 year prison sentence with eligibility for parole in February 2013, after which he will be deported to Mexico. Jennifer was incarcerated on March 27, 2009, and Marcos Jr. was placed into foster care. On May 6, 2009, both parents admitted to allegations under 43-247(3)(a) and Marcos Jr. was adjudicated. Jennifer gave birth to Andres in August 2009, but was doing well in complying with the case plan and Andres was not removed. On January 25, 2010, at a sentencing, she was unexpectedly incarcerated and Andres was placed in foster care. Andres was adjudicated as to Marcos on April 8, 2010. Several review hearings were held where Jennifer continued to do well and the children transitioned to her home in November 2010. At a review hearing on January 7, 2011, DHHS and the GAL requested DHHS maintaining legal custody but achieving reunification by April. Jennifer indicated her intent to file for custody in district court and stated she would love to have the children placed with her. The court, noting the progress and Marcos long-term inability to care for the children, determined legal custody be with Jennifer and that the court’s jurisdiction be terminated. Marcos appealed.

The Nebraska Court of Appeals reversed and remanded the court’s decision. It agreed that the juvenile court has the power to determine custody matters based on a 2008 legislative change. However, the Court of Appeals concluded that in this case Marcos was not given notice and the opportunity to be heard before being deprived of his parental rights. Marcos was aware from the multiple review hearings that custody would be an issue generally but not that the determination would be on January 7th. The Court of Appeals noted that this right exists regardless of whether Marcos had the ability to gain custody.