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IN RE INTEREST OF CARMELO G.

Cite as 296 Neb. 805

In re Interest of Carmelo G., a c

under 18 years of ag

State of Nebraska, appellee, v.

Latika G., appella

___ N.W.2d ___

Filed June 2, 2017. No. S-16-981.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently 

of the juvenile court’s findings.

2. Constitutional Law: Due Process. The determination of whether the 

procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

3. Appeal and Error. On a question of law, an appellate court reaches a 

conclusion independently of the court below.

4. Constitutional Law: Parental Rights. The proper starting point for 

legal analysis when the State involves itself in family relations is always 

the fundamental constitutional rights of a parent.

5. Parental Rights. The interest of parents in the care, custody, and control 

of their children is perhaps the oldest of the fundamental liberty interests 

recognized by the U.S. Supreme Court.

6. Parental Rights: Due Process. The fundamental liberty interest of 

natural parents in the care, custody, and management of their children is 

afforded due process protection.

7. Juvenile Courts: Parental Rights. Neb. Rev. Stat. § 43-248(2) (Cum. 

Supp. 2014) allows the State to take a juvenile into custody without a 

warrant or order of the court when it appears the juvenile is seriously 

endangered in his or her surroundings and immediate removal appears 

to be necessary for the juvenile’s protection. However, the parent retains 

a liberty interest in the continuous custody of his or her child.

8. Parental Rights: Notice. The State may not, in exercising its parens 

patriae interest, unreasonably delay in notifying a parent that the State 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/23/2017 01:12 AM CDT
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has taken emergency action regarding that parent’s child nor unreasonably delay in providing the parent a meaningful hearing.

9. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the Separate Juvenile Court of Douglas County: 

Vernon Daniels, Judge. Order vacated, and cause rem

for further proceedings.

Thomas C. Riley, Douglas County Public Defender, and Zoë 

R. Wade for appellant.

Donald W. Kleine, Douglas County Attorney, and Paulette 

Merrell for appellee.

Kate E. Placzek, of Law Office of Kate E. Placzek, guardian 

ad litem.

Heavican, C.J., Wright, Miller-Lerman, Cas

Kelch, and Funke,

Miller-Lerman

NATURE OF CASE

On January 5, 2016, the State filed a petition in the separate 

juvenile court of Douglas County against Carmelo G.’s biological parents, Latika G. and Deontrae H. The State alleged 

that Carmelo lacked parental care by reason of the fault or 

habits of Latika and Deontrae. On that same day, January 5, 

the juvenile court filed an ex parte order in which it granted 

the State’s motion for temporary custody of Carmelo with 

the Department of Health and Human Services (DHHS). A 

protective custody hearing was held on January 21, but it was 

continued over many dates until it was concluded on August 

2. On September 19, the juvenile court filed an order in which 

it ordered that Carmelo remain in the temporary custody of 

DHHS until further order of the court. Latika appeals. Because 

we conclude that Latika’s procedural due process rights were 
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violated, we vacate the September 19 order and remand the 

cause for further proceedings.

STATEMENT OF FACTS

Carmelo was born in July 2015. Latika is Carmelo’s biological mother, and Deontrae is Carmelo’s biological father. Prior 

to the filing of the petition in the present case, Carmelo was 

under the jurisdiction of the juvenile court from July 2015 

through December 2, 2015, in case No. JV 15-1285. In that 

earlier case, the State filed a petition against Latika pursuant 

to Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014). In its 

protective custody order filed July 15, the juvenile court noted 

that the State had requested continued protective custody of 

Carmelo by DHHS and that Latika did not resist continued 

protective custody. The court ordered that Carmelo was to 

remain in the temporary custody of DHHS, with placement 

to exclude the parental home. The court stated that returning 

Carmelo to Latika’s care at that time would be contrary to 

his health and safety due to exigent circumstances, including 

the facts set forth in the affidavit for removal in that case, 

“as well as the mother’s use of illegal drugs which impairs 

her ability to adequately provide for the child.” It was also 

noted in case No. JV 15-1285 that Latika suffered from mental health issues, including bipolar disorder, schizophrenia, 

and depression.

On December 2, 2015, an adjudication hearing was held in 

case No. JV 15-1285. In an order filed on December 3, the 

juvenile court dismissed that case, stating that based on the 

evidence presented, it could not find that Carmelo was within 

the meaning of § 43-247(3)(a) as pled. Carmelo was returned 

to Latika’s home on December 2.

Kathleen Aburumuh, an employee of Nebraska Families 

Collaborative (NFC), was the family permanency specialist 

assigned to work with Latika during the pendency of the 

initial filing against Latika in case No. JV 15-1285. During 

the pendency of that case, Aburumuh met with Latika a 
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minimum of once per month from August through December 

2015 and Aburumuh worked with Latika on her case plan, 

which included addressing substance abuse and domestic violence issues.

Starting on December 3, 2015, following the dismissal 

of case No. JV 15-1285, Aburumuh continued to work with 

Latika through Aburumuh’s position on the noncourt team 

at NFC. Aburumuh testified that a noncourt team consists of 

caseworkers “who primarily work with families where the 

safety threat is not large enough to remove the children, but 

there are still safety threats present.” As a member of the noncourt team, Aburumuh would work with the family to resolve 

those safety threats.

Aburumuh testified that as of December 3, 2015, there were 

threats to the child present in Latika’s home. Aburumuh testified that the threats to Carmelo’s well-being were reflected 

in the facts that there had been two calls to law enforcement regarding domestic violence in October and November 

2015 and that Latika had recently tested positive for cocaine. 

Aburumuh further testified that at that time, NFC felt that 

because Latika “was already involved in services and hadn’t 

quite completed them, and this was a sudden turn in the case, 

that nobody was kind of expecting it, that it would be to her 

benefit to continue with services.”

When Aburumuh met with Latika at Latika’s home on 

December 3, 2015, Aburumuh presented Latika with a 

safety plan. Aburumuh testified that safety plans are put into 

place when it has been determined that without services, 

the child at issue is at risk of removal. The safety plan 

Aburumuh presented to Latika on December 3 included, 

inter alia, that Latika was to participate in random drug testing, to continue to participate in and complete outpatient 

treatment, to participate in domestic violence classes, and 

not to have contact with Deontrae. The December 3 safety 

plan further stated that Latika’s brother would move into the 

home effective December 4 to help Latika. The plan provided 
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that Latika would allow random visits from her mother and 

her sister.

Latika’s mother and Carmelo were present at the meeting 

on December 3, 2015. Latika’s brother was briefly present, 

but Aburumuh did not discuss the safety plan with him or his 

involvement as a safety plan participant. Latika’s sister, who 

was also identified as a safety plan participant, was not present 

at the meeting.

Aburumuh was the only person to sign the December 3, 

2015, safety plan. Latika and the other safety plan participants did not sign it. Aburumuh testified that Latika verbally 

agreed to the December 3 safety plan. Aburumuh testified 

that the safety plan was not signed because she needed to 

correct the name of Latika’s brother, who was a plan participant. Aburumuh testified that she later attempted to have 

Latika sign the correct safety plan but was unable to meet up 

with her.

On December 20, 2015, reports of domestic violence 

between Latika and Deontrae were made to law enforcement. 

On December 29, DHHS was made aware of the domestic violence report. As a result of learning of the domestic violence 

report, on December 31, Aburumuh and Kevin Peatrowsky, 

who is a child and family services specialist with DHHS, met 

with Latika in order to investigate the domestic violence allegation of December 20. Peatrowsky testified Latika told him 

that she and Deontrae had gotten into an argument that resulted 

in a physical fight and that during the argument, Deontrae 

had broken a picture frame over Latika’s head and a bowl of 

cereal was spilled. Peatrowsky testified that he understood that 

there had been physical violence between Latika and Deontrae 

“[m]ore than two times in the past year . . . .”

On December 31, 2015, Peatrowsky presented Latika with 

an updated safety plan. The December 31 safety plan included 

the services and conditions outlined in the December 3 safety 

plan. The December 31 safety plan further stated that Carmelo 

was “not currently safe staying in the family home of Latika” 
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and that he would “now stay with the maternal aunt . . . 

in order to ensure that the safety of the child is secured.” 

The December 31 safety plan was signed by all the safety 

plan participants.

On January 5, 2016, the State filed a petition against Latika 

pursuant to § 43-247(3)(a) (Supp. 2015) in which the State 

alleged that Carmelo lacked proper parental care by reason 

of the fault or habits of Latika. Specifically, the State alleged 

in the petition that (1) Latika’s use of alcohol or drugs places 

Carmelo at risk; (2) Latika has participated in domestic violence with Deontrae; (3) Latika has failed to work with an 

agreed-upon NFC plan; (4) on or about December 20, 2015, 

Latika was involved in a domestic violence incident with 

Deontrae in which law enforcement was called to the home 

where Carmelo resides; (5) on December 31, Latika admitted 

to an NFC employee that she had willingly let Denotrae into 

her home on December 20; and (6) due to the above allegations, Carmelo is at risk.

On that same day, January 5, 2016, the juvenile court filed 

an ex parte order in which it granted immediate temporary 

custody of Carmelo to DHHS. The court stated that based 

upon its findings of drug use and domestic violence, Carmelo 

was seriously endangered in his surroundings. The court further stated that continuation of Carmelo in his home would be 

contrary to his health, safety, or welfare and that immediate 

removal appeared to be necessary for Carmelo’s protection. 

The court further noted that reasonable efforts were made 

to prevent removal or that exigent circumstances precluded 

reasonable efforts from being made. Such reasonable efforts 

included a “[s]afety plan, drug testing, [i]nte[n]sive [o]utpatient [t]reatment, [and] IFP services.” Based on the foregoing, 

the court ordered that DHHS was to take temporary custody of 

Carmelo, which DHHS did. The ex parte order set a protective 

custody hearing for January 12, 2016.

The State moved for Carmelo’s continued detention, with 

placement to exclude the parental home. Carmelo’s guardian 
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ad litem and DHHS joined in the motion. Latika and Deontrae 

resisted the continued detention. At some point during these 

proceedings, Deontrae no longer resisted the continued detention, and he is not a part of this appeal.

On January 7, 2016, the juvenile court judge recused himself 

because he was the judge who had presided over the proceedings in case No. JV 15-1285. The protective custody hearing 

was reset for January 21.

The protective custody hearing was held on January 21, 

2016, but it was continued for a further evidentiary hearing. 

Continued evidentiary hearings were held on February 10 

and 24, March 10, May 13, and August 2. Each continuance 

order stated that the hearing was continued “due to insufficient time,” except for the order continuing the hearing 

from May 13 to August 2, in which the court stated that “the 

county attorney moved for a continuance for the reason that 

the witness is on vacation.” The parties did not object to 

the continuances.

Aburumuh and Peatrowsky testified at the protective custody hearing. The juvenile court received eight exhibits, 

including the December 3, 2015, safety plan; the December 

31, 2015, safety plan; certain certified copies of orders from 

case No. JV 15-1285; results of Latika’s drug tests; and 

Aburumuh’s affidavit for removal dated January 5, 2015.

The protective custody hearing was concluded on August 2, 

2016, and the juvenile court filed a protective custody order 

on September 19, in which it sustained the State’s motion 

for continued temporary custody. The court stated that by a 

preponderance of the evidence, it found that exigent circumstances existed, reasonable efforts were not required to prevent 

removal of Carmelo from the home of Latika, and it would 

be contrary to Carmelo’s health and safety for Carmelo to be 

returned home. The court determined that it was in Carmelo’s 

best interests, safety, and welfare to remain in the temporary 

custody of DHHS.

Latika appeals.
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ASSIGNMENTS OF ERROR

Latika assigns, restated, that (1) she was denied due process 

due to the unreasonable delay of more than 8 months between 

the issuance of the ex parte custody order and that of the protective custody order continuing Carmelo’s detention outside 

the parental home pending adjudication and (2) she was denied 

due process when the juvenile court determined that continuing 

Carmelo’s detention was necessary based on Latika’s noncompliance with the December 3, 2015, safety plan because the 

plan was invalid and coercive.

STANDARDS OF REVIEW

[1] An appellate court reviews juvenile cases de novo on 

the record and reaches a conclusion independently of the juvenile court’s findings. In re Interest of Noah B. et al., 295 Neb. 

764, 891 N.W.2d 109 (2017).

[2,3] The determination of whether the procedures afforded 

an individual comport with constitutional requirements for procedural due process presents a question of law. In re Interest 

of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (2014). 

On a question of law, an appellate court reaches a conclusion 

independently of the court below. In re Interest of Noah B. et 

al., supra.

ANALYSIS

In her first assignment of error, Latika claims that her procedural due process rights were violated by the unreasonable 

delay of more than 8 months between the issuance of the ex 

parte order for immediate temporary custody and that of the 

protective custody order, sometimes referred to as the “detention order.” Although Latika’s objections to the process tended 

to focus on the initial removal of Carmelo, the court recognized on the record that the duration of the proceedings had 

been prolonged. We find merit to Latika’s assignment of error 

claiming a denial of due process.

[4-6] The proper starting point for legal analysis when 

the State involves itself in family relations is always the 
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fundamental constitutional rights of a parent. In re Interest of 

Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014). The interest 

of parents in the care, custody, and control of their children 

is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. Jeremiah J. v. Dakota 

D., 287 Neb. 617, 843 N.W.2d 820 (2014), citing Troxel v. 

Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 

(2000). The fundamental liberty interest of natural parents in 

the care, custody, and management of their child is afforded 

due process protection. Zahl v. Zahl, 273 Neb. 1043, 736 

N.W.2d 365 (2007); In re Interest of Mainor T. & Estela T., 

267 Neb. 232, 674 N.W.2d 442 (2004). Such due process 

rights include the right to be free from an unreasonable delay 

in providing a parent a meaningful hearing after the entry of 

an ex parte temporary custody order. See In re Interest of R.G., 

238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other 

grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 

350 (1998). We have previously described the three-stage 

analysis employed for a claim that one is being deprived of a 

liberty interest without due process of law. See, Sherman T. v. 

Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013); In re Interest 

of R.G., supra. We have undertaken that analysis.

[7,8] Neb. Rev. Stat. § 43-248(2) (Cum. Supp. 2014) allows 

the State to take a juvenile into custody without a warrant 

or order of the court when it appears the juvenile “is seriously endangered in his or her surroundings and immediate 

removal appears to be necessary for the juvenile’s protection.” 

However, the parent retains a liberty interest in the continuous custody of his or her child. In re Interest of Mainor T. 

& Estela T., supra. An ex parte order authorizing temporary 

custody with DHHS is permitted because of its short duration and the requirement of further action by the State before 

custody can be continued. Id. See, also, In re Interest of R.G., 

supra. But “the State may not, in exercising its parens patriae 

interest, unreasonably delay in notifying a parent that the 

State has taken emergency action regarding that parent’s child 
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nor unreasonably delay in providing the parent a meaningful 

hearing.” In re Interest of R.G., 238 Neb. at 419, 470 N.W.2d 

at 790 (emphasis supplied). Therefore, following the issuance 

of an ex parte order for temporary immediate custody, “[a] 

prompt detention hearing is required in order to protect the 

parent against the risk of an erroneous deprivation of his or 

her parental interests.” In re Interest of Mainor T. & Estela T., 

267 Neb. at 246, 674 N.W.2d at 456. See, also, In re Interest 

of R.G., supra.

In the present case, the State filed its petition on January 

5, 2016, and on that same day, the juvenile court filed the 

ex parte order for immediate custody. DHHS took custody 

of Carmelo. The State moved for Carmelo’s continued detention. The protective custody hearing was set for January 12, 

which was 7 days after the filing of the ex parte order. The 

judge then recused himself, and the protective custody hearing was rescheduled for January 21. The hearing began on 

January 21, which was 16 days following the entry of the ex 

parte order. Receipt of evidence could not be completed in 

the time allotted for the hearing, and this hearing and several 

subsequent hearings were continued. Hearings were held on 

February 10 and 24, March 10, May 13, and August 2. The 

hearing concluded on August 2. The juvenile court filed its 

protective custody order on September 19, which was more 

than 8 months after the ex parte order for immediate custody 

was filed.

Latika argues that the more than 8-month delay between 

the entry of the ex parte order and that of the protective custody order was unreasonable and violated her due process 

rights. In contrast, Carmelo’s guardian ad litem and the State 

contend that the delay between the issuance of the ex parte 

order and that of the protective custody order was not unreasonable, because Latika received notice for each of the hearings and received services and visitation with Carmelo during 

this period of time. The guardian ad litem and the State also 

assert that “the elapsed time was for the purpose of providing 
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[Latika] a meaningful opportunity to be heard.” Brief for 

appellee guardian ad litem at 14.

We disagree with the argument of the guardian ad litem and 

the State to the effect that the period of delay was a benefit to 

Latika and Carmelo. Instead, we determine that the more than 

8-month delay between the entry of the ex parte order and that 

of the protective custody order was unreasonable and resulted 

in a violation of Latika’s procedural due process rights. As 

stated above, an ex parte order authorizing temporary custody 

with DHHS is permitted because of its short duration, and a 

prompt detention hearing is required in order to protect the 

parent against the risk of an erroneous deprivation of his or her 

parental interests. See In re Interest of Mainor T. & Estela T., 

267 Neb. 232, 674 N.W.2d 442 (2004).

In In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 

(1991), disapproved on other grounds, O’Connor v. Kaufman, 

255 Neb. 120, 582 N.W.2d 350 (1998), we recognized that parents have due process rights to be free from an unreasonable 

delay in providing the parents a meaningful hearing after an 

ex parte order for immediate custody is filed. In In re Interest 

of R.G., we concluded that the mother’s due process rights 

were not violated by a 14-day delay between the entry of an 

ex parte order and that of a detention order when she was 

given an opportunity to be heard at the detention hearing and 

was allowed to visit her children in the interim. We cautioned, 

however, that “the 14 days elapsing between the entry of the 

ex parte order and the hearing poise the procedures employed 

in this case on the brink of unreasonableness.” Id. at 423, 470 

N.W.2d at 792.

In this case, the detention hearing commenced on January 

21, 2016, which was 16 days after the ex parte order was filed. 

This is 2 days more than the time that elapsed between the 

entry of the ex parte order and the hearing in In re Interest of 

R.G., and in that case, we cautioned that the 14-day period left 

the procedures employed “on the brink of unreasonableness.” 

238 Neb. at 423, 420 N.W.2d at 792. The protective custody 
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hearing in this case was continued over a period of several 

months, until it finally concluded on August 2. Thereafter, the 

juvenile court filed its protective custody order on September 

19, which was more than 8 months after the ex parte order was 

filed. The allowance of such an ex parte temporary action is 

a reasonable reaction to a perceived emergency situation. See 

In re Interest of R.G., supra. However, in exercising its parens 

patriae interest and taking such ex parte temporary action, the 

State may not unreasonably delay in providing the parent a 

meaningful hearing. See id. This is because a parent has a liberty interest in raising his or her child, a concept which encompasses the child’s custody, care, and control. See Jeremiah 

J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014). The 

more than 8-month delay in this case between the filing of the 

ex parte order and that of the protective custody order is too 

long a duration and results in interference with Latika’s liberty 

interest in raising Carmelo.

This court is well aware of the many challenges involved 

in scheduling and completing evidentiary hearings in jurisdictions with crowded dockets, including the reality that lawyers 

are sometimes unable to complete their evidence in the time 

allotted and continuances are necessary. But despite these challenges, we have recognized that the juvenile court is responsible for managing its docket. That responsibility includes 

providing prompt detention hearings on an ex parte protective 

custody order, and in this case, we cannot find that the protective custody hearing was initiated or resolved promptly. The 

delay in this case was unreasonable, and Latika’s procedural 

due process rights were violated because of this unreasonable delay.

We note that the parties did not directly object to the continuances of the hearing. However, this does not impact our 

analysis. In In re Interest of D.M.B., 240 Neb. 349, 355-56, 

481 N.W.2d 905, 911 (1992), we stated that “[a] delay of 8 

months between the time a child is ‘temporarily’ taken from 

the child’s parent until the child and parent are given the 
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evidentiary safeguards of an adjudication hearing cannot be 

condoned, even when, as here, the parties agreed to repeated 

continuances.” (Emphasis supplied.) We similarly agree in the 

instant case that the 8-month delay between the issuance of 

the ex parte order and that of the protective custody order cannot be condoned, even though the parties did not object to the 

repeated continuances of the protective custody hearing.

We determine that Latika’s procedural due process rights 

were violated. Therefore, we vacate the September 19, 2016, 

order of the juvenile court and remand the cause for further proceedings.

[9] Because our determination of Latika’s first assignment 

of error is dispositive, we do not reach her second assignment 

of error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it. Medicine Creek v. Middle Republican NRD, 

ante p. 1, 892 N.W.2d 74 (2017).

CONCLUSION

We conclude that Latika’s procedural due process rights 

were violated by the unreasonable delay of more than 8 months 

between the filing of the ex parte order for immediate temporary custody and the filing of the protective custody order. 

Therefore, we vacate the September 19, 2016, temporary protective order of the juvenile court and remand the cause for 

further proceedings.

 Order vacated, and cause re

for further proceedi