In re Interest of Aaliya M. , 21 Neb. Ct. App. 63 ( 2013 )

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF AALIYAH M. ET AL. 63
Cite as 21 Neb. App. 63As stated in the above analysis, we do not find any genuine
issue of material fact regarding MMAStop’s alleged unjust
enrichment. Therefore, we conclude the district court was cor-
rect in entering summary judgment in favor of MMAStop.
CONCLUSION
Based on our review of the record, the facts are undisputed
that MMAStop acted in good faith without knowledge of
Anselmo’s fraud or Abante’s mistake in paying MMAStop.
Because MMAStop has legal justification to retain the funds
it received from Abante, justice and fairness do not require it
to return the money. Therefore, we affirm the decision of the
district court.
Affirmed.
In re I nterest of
Aaliyah M. et al.,
children under18 years of age.
State of Nebraska, appellee, v.
Ronald M., appellant.
___ N.W.2d ___
Filed July 23, 2013. No. A-12-979.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Parental Rights. Parents have a recognized liberty interest in raising their
children.
3. Parent and Child: Due Process. The parent-child relationship is afforded due
process protection.
4. Constitutional Law: Due Process: Appeal and Error. The appellate courts
apply a three-part test for due process protecting liberty interests: (1) Is there
a protected liberty interest at stake? (2) If so, what procedural protections are
required? (3) Given the facts of the case, was there a denial of the process that
was due?
5. Words and Phrases. The word “or,” when used properly, is disjunctive.
6. Constitutional Law: Due Process: Parental Rights. In a hearing on the ter-
mination of parental rights without a prior adjudication hearing, where such
termination is sought under Neb. Rev. Stat. § 43-292(1) through (5) (Cum. Supp.
2012), such proceedings must be accompanied by due process safeguards.
Decisions of the Nebraska Court of Appeals
64 21 NEBRASKA APPELLATE REPORTS
Appeal from the Separate Juvenile Court of Lancaster
County: Roger J. Heideman, Judge. Affirmed.
Joseph E. Dalton, of Dalton Law Office, P.C., L.L.O., for
appellant.
Daniel Zieg, Deputy Lancaster County Attorney, for
appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Moore, Judge.
INTRODUCTION
Ronald M. appeals from the order of the separate juvenile
court of Lancaster County, which terminated his parental rights
to his minor children. On appeal, Ronald assigns error to the
court’s failure to advise him of his rights pursuant to Neb. Rev.
Stat. § 43-279.01 (Reissue 2008) prior to the hearing on the
State’s motion for termination of his parental rights. Because
Ronald received the rights advisement at the time of the initial
appearance hearing, his due process rights were not violated,
and we affirm.
BACKGROUND
On October 1, 2009, the juvenile court held an initial
appearance hearing on the State’s petition alleging that the
minor children were juveniles as described in Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008). The children’s mother appeared
with her counsel, and Ronald appeared with his counsel.
Before Ronald and the children’s mother entered their pleas,
the court advised them of their rights and the possible disposi-
tions of the case as required by § 43-279.01. In advising them,
the court stated:
You are entitled to be represented by an attorney, counsel
has been appointed for both of you in this matter, as well.
You have a right to remain silent as to any question-
ing which might tend to prove you guilty of a criminal
charge. You do have a right to a speedy adjudication hear-
ing or a trial where the State must prove the allegations
of [the adjudication petition] by a preponderance of the
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF AALIYAH M. ET AL. 65
Cite as 21 Neb. App. 63evidence. That means what is alleged is more likely true
than not true. You do have a right to confront and cross-
examine the State’s witnesses. You also have a right to
testify yourself or bring into court witnesses to testify for
you. You do have a right to appeal the ruling of the Court
and have a transcript of the proceedings prepared for that
purpose. And you do have the right to a prompt hearing
on the matter of temporary custody [i]f your children
would be removed from your home.
After Ronald and the children’s mother both indicated that
they understood their rights, the court advised them fur-
ther, stating:
I also need to explain to you what could happen if the
Court would take jurisdiction in that matter, which would
happen if after a trial the State had met its burden of
proof and had proven the allegations by a preponder-
ance of the evidence, or if you admit those allegations.
In those cases, we would then have a disposition hearing
and the Court would enter a disposition order. That order
would require you to comply with a rehabilitative plan
that would be designed to correct the issues that had been
adjudicate[d]. As part of that order your children could
be allowed to remain in your home under the supervi-
sion of the Department of Health and Human Services.
The order could provide that your children’s temporary
custody be placed with the Department of Health and
Human Services for placement in foster care, the care of
an association or institution. It could also provide that
your children be placed with a relative or other suitable
family member or person.
I have to advise you that if the Court does adjudicate
in the matter and you fail to correct the issues that had
been adjudicated, at some point in time a motion to
terminate your parental rights could be filed. The State
statutes provide a specific time frame that a child or
children remain in an out of home placement may serve
as a basis for the filing of a motion to terminate parental
rights. And that is if a child or children remain in an out
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66 21 NEBRASKA APPELLATE REPORTS
of home placement fifteen out of the most recent twenty-
two months.
And, finally, you could be required to contribute to the
cost of any out of home placement of your children.
Ronald and the children’s mother then indicated that they
understood the possible dispositions should the case be
adjudicated.
After the juvenile court advised Ronald and the children’s
mother of their rights and the possible dispositions, the court
entered their denials and continued the case for further adju-
dication and a formal hearing. Although our record does not
contain the adjudication proceedings, the minor children were
ultimately adjudicated under § 43-247(3)(a).
On June 12, 2012, the State filed motions for termination of
the parental rights of both Ronald and the children’s mother.
In the motion seeking termination of Ronald’s parental rights,
the State alleged that termination was proper under Neb. Rev.
Stat. § 43-292(1), (2), (6), (7), and (9) (Cum. Supp. 2012) and
that termination of his parental rights was in the children’s
best interests.
On July 12, 2012, at the initial hearing on the State’s
motions for termination of parental rights, the juvenile court
again gave an advisement of rights and explained the possible
dispositions pursuant to § 43-279.01. The children’s mother
appeared at this hearing with her attorney and entered a denial
to the allegations of the motion seeking to terminate her paren-
tal rights. Ronald did not appear at this hearing, but his counsel
was present. The court entered denials to the allegations of the
motions on behalf of both Ronald and the mother and set the
matter for a formal contested termination hearing. Ronald was
present and represented by counsel at the termination hearing
on August 31, but the rights advisement was not repeated dur-
ing the course of the termination hearing.
The juvenile court entered an order on September 25, 2012,
terminating Ronald’s parental rights. The court found that the
State had proved grounds for termination under § 43-292(2),
(6), and (7) by clear and convincing evidence but had not
proved grounds for termination under subsections (1) and
(9) of that statute. The court also found that termination of
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF AALIYAH M. ET AL. 67
Cite as 21 Neb. App. 63Ronald’s parental rights was in the children’s best interests.
Ronald subsequently perfected his appeal to this court.
ASSIGNMENT OF ERROR
Ronald asserts that the juvenile court erred when it failed to
advise him of his rights pursuant to § 43-279.01, resulting in
a violation of procedural due process and a lack of fundamen-
tal fairness.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Edward B., 285 Neb. 556,
827 N.W.2d 805 (2013).
ANALYSIS
Ronald asserts that the juvenile court erred when it failed to
advise him of his rights pursuant to § 43-279.01, resulting in
a violation of procedural due process and a lack of fundamen-
tal fairness.
Section 43-279.01 provides:
(1) When the petition alleges the juvenile to be within
the provisions of subdivision (3)(a) of section 43-247 or
when termination of parental rights is sought pursuant to
subdivision (6) or (7) of section 43-247 and the parent or
custodian appears with or without counsel, the court shall
inform the parties of the:
(a) Nature of the proceedings and the possible con-
sequences or dispositions pursuant to sections 43-284,
43-285, and 43-288 to 43-295;
(b) Right to engage counsel of their choice at their own
expense or to have counsel appointed if unable to afford
to hire a lawyer;
(c) Right to remain silent as to any matter of inquiry
if the testimony sought to be elicited might tend to prove
the parent or custodian guilty of any crime;
(d) Right to confront and cross-examine witnesses;
(e) Right to testify and to compel other witnesses to
attend and testify;
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68 21 NEBRASKA APPELLATE REPORTS
(f) Right to a speedy adjudication hearing; and
(g) Right to appeal and have a transcript or record of
the proceedings for such purpose.
[2-4] Parents have a recognized liberty interest in raising
their children. In re Interest of Billie B., 8 Neb. App. 791, 601
N.W.2d 799 (1999). The parent-child relationship is afforded
due process protection. Id. The appellate courts apply a three-
part test for due process protecting liberty interests: (1) Is there
a protected liberty interest at stake? (2) If so, what procedural
protections are required? (3) Given the facts of the case, was
there a denial of the process that was due? Id.This court has stated that § 43-279.01
protects parents’ liberty interests in raising their children
by ensuring that a parent who is brought into court for
a juvenile proceeding knows what is going on; knows
all the possible outcomes of the case, including drastic
measures such as termination of parental rights; and
understands the rights that may be exercised during
the case.
In re Interest of Billie B., 8 Neb. App. at 796, 601 N.W.2d
at 803.
The record shows that Ronald and the children’s mother
were both present at the October 2009 initial appearance hear-
ing during the adjudication phase of the proceedings; that
during the hearing, the juvenile court gave them the statu-
tory rights advisement required by § 43-279.01; and that both
Ronald and the children’s mother acknowledged those rights.
Ronald was not, however, present at the July 2012 initial hear-
ing on the State’s motion for termination of his parental rights.
The children’s mother was present at that hearing and was
given the § 43-279.01 rights advisement again at that time.
Ronald was present at the later trial on the State’s motion for
termination, but the rights advisement was not repeated during
the actual termination trial.
Ronald argues that the juvenile court’s failure to give him
the rights advisement during the termination phase of the pro-
ceedings violated his due process rights and that thus, the order
terminating his parental rights should be vacated. In support
of his argument, Ronald cites to In re Interest of Joelyann H.,
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF AALIYAH M. ET AL. 69
Cite as 21 Neb. App. 636 Neb. App. 472, 574 N.W.2d 185 (1998), and In re Interest of
A.D.S. and A.D.S., 2 Neb. App. 469, 511 N.W.2d 208 (1994).
These cases are inapplicable to the present case. In In re
Interest of Joelyann H., the rights advisement was never given
at any stage of the juvenile court proceedings, and in In re
Interest of A.D.S. and A.D.S., the parent was advised of some,
but not all, of the rights set forth in § 43-279.01.
In this case, the complete advisement of rights under
§ 43-279.01 was given to Ronald at the initial appearance
hearing and he was advised of the nature of the juvenile court
proceedings and the possible consequences, including the pos-
sibility of termination of his parental rights. Ronald’s brief
ignores the advisement that he was given during the adjudica-
tion phase and does not contain any authority to support his
argument that the rights advisement should have been given a
second time. The issue here is whether, after having advised
Ronald of his rights during the adjudication phase of the pro-
ceedings, the court was required to repeat the advisement dur-
ing the termination phase of the proceedings.
[5] The State contends that § 43-279.01 requires that the
rights advisement be given only once and does not require that
the advisement, if given during the adjudication phase of the
proceedings, be repeated during the termination phase. The
State argues that the statute is disjunctive and requires that the
advisement be given either during the adjudication phase or
during the termination phase. The word “or,” when used prop-
erly, is disjunctive. Liddell-Toney v. Department of Health &
Human Servs., 281 Neb. 532, 797 N.W.2d 28 (2011). We agree
and conclude that § 43-279.01 requires that the rights advise-
ment be given at either the adjudication phase or the termina-
tion phase, but does not require that the advisement be given
at both phases.
[6] Our conclusion that the rights advisory does not need
to be given at both the adjudication phase and the termina-
tion phase of the proceedings is consistent with the recogni-
tion that an action to terminate parental rights can be brought
without the necessity of a prior adjudication, as long as due
process safeguards are met. See, Neb. Rev. Stat. § 43-291(Reissue 2008); In re Interest of Joshua M. et al., 256 Neb.
Decisions of the Nebraska Court of Appeals
70 21 NEBRASKA APPELLATE REPORTS
596, 591 N.W.2d 557 (1999). In a hearing on the termination
of parental rights without a prior adjudication hearing, where
such termination is sought under § 43-292(1) through (5), such
proceedings must be accompanied by due process safeguards.
In re Interest of Joshua M. et al., supra. In In re Interest of
Brook P. et al., 10 Neb. App. 577, 634 N.W.2d 290 (2001), the
parents were not given the statutory rights advisement at the
adjudication phase, but did not appeal from the adjudication
order. On appeal following the termination of their parental
rights, we found that although the adjudication was improper,
the juvenile court nevertheless had jurisdiction to terminate the
parental rights under § 43-292(2) and (4), regardless of the lack
of prior adjudication. And, although the parents were not given
their due process rights at the adjudication hearing, because the
parents were given an adequate rights advisement prior to the
termination hearing, their due process rights were not violated
in connection with the termination of their parental rights. In re
Interest of Brook P. et al., supra.
In this case, Ronald was advised during the adjudication
phase of the proceedings of his rights listed in § 43-279.01 and
he was advised of the nature of the juvenile court proceedings
and the possible consequences, including the possibility that
his parental rights could ultimately be terminated. While the
statutory rights advisory was not given to Ronald again during
the termination phase, the juvenile court was not required to do
so. Ronald does not allege that he was prejudiced in any way
by the court’s failure to advise him again during the termina-
tion phase of the proceedings, and the record does not reflect
that he was prejudiced in any way by not being advised of his
rights a second time. Given the facts of this case, we find no
violation of Ronald’s due process rights.
CONCLUSION
Ronald’s due process rights were not violated in this case.
The termination of his parental rights is affirmed.
Affirmed.