SUMMARY: For the purposes of interpreting when DHHS is required to make reasonable efforts towards reunification under Neb. Rev. Stat. § 43-286.01, a family is defined as either the biological parents or a stepparent when such stepparent is married to the custodial parent at the time the petition is filed, in accordance with Rev. Stat. § 43-245(11). In this case the two parents, each with separate children, were not married to one another before the petition was filed and thus were considered to be two distinct family units for the purposes of determining whether DHHS had to make reasonable efforts to reunify.
Under Neb. Rev. Stat. § 43-286.01, DHHS does not need to make reasonable efforts to preserve and reunify the family if the court determines that (a) “the parent of the juvenile has subjected the juvenile to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse…”
Beginning in September 2004, Daniel and his son Ethan were living together with Amanda and her daughters Chloe and Katrina. Daniel was not the biological father of either of Amanda’s daughter, and Amanda was not the biological mother of Ethan. In January 2005, Chloe sustained injuries to her body and Amanda ultimately admitted that she had caused her daughters injuries. At the end of January 2005, Katrina was diagnosed with a skull fracture and subdural hematoma. Ethan suffered no injuries. On January 27, 2005, all three children were removed from the home and placed into state care. Amanda and Daniel married on February 15, 2005, after the juvenile petitions were filed.
DHHS stated in their case plan that reunification between Daniel and Ethan was unnecessary and unwise under Neb. Rev. Stat. § 43-286.01. The Court of Appeals disagreed. Since Daniel and Amanda were not married at the time of the alleged abuse to Amanda’s daughters, Ethan and Daniel were their own distinct family unit, while Amanda and her daughters were a separate and distinct family unit. Therefore the court must determine whether there was any reason why DHHS should not pursue reunification between Ethan and Daniel. Ethan was never injured by either Daniel or Amanda. There was “no clear and convincing evidence of aggravated circumstances on the part of Daniel which would eliminate the requirement” that DHHS make reasonable efforts pursue reunification. Even though “a child can be found to have been chronically abused by virtue of his presence when his or her parent subjected a sibling to chronic abuse,” Daniel and Amanda’s marital status at the time of the alleged abuse prevents them from being considered a family under the statute.
Therefore, consideration of the immediate reunification must be considered. However, the court notes that under the Best Interest standard, two important facts must be evaluated. “First, Daniel and Amanda are not married, and second, our conclusions concerning Amanda’s conduct [towards her children] require[s]that caution be exercised in returning Ethan to Daniel’s custody, because Amana, as Ethan’s stepparent, is now obviously implicated when considering Ethan’s best interests.”
The court concluded that there was clear and convincing evidence that Amanda had chronically abused her children and thus DHHS did not have to make reasonable efforts at reunification. The court remanded Ethan’s case for determination of whether he should be reunited with Daniel or whether he should be in Nebraska protective custody. The court acknowledged that this decision turned largely on the limitations of the definition of family, but urged that change in the definition must be made legislatively.