Hidden in Plain Sight: Kerri S. and Nebraska's Non-court Child Welfare System

• Publication year: 2021

99 Nebraska L. Rev. 988. Hidden in Plain Sight: Kerri S. and Nebraska's Non-court Child Welfare System

Hidden in Plain Sight: Kerri S. and Nebraska's Non-court Child Welfare System

Comment ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 989

II. Background ........................................... 991
A. The Rise of Non-court Involved Cases in Nebraska's Child Welfare System ............................. 991
B. How a Hotline Call Becomes a Non-court Case ..... 992
C. Benefits and Pitfalls of Non-court Involved Cases . . 994
D. Circuit Split: When Are Due Process Rights Triggered in Non-court Arrangements? ............. 997
1. Constitutional Due Process Protections and Fundamental Rights ........................... 997
2. A Broad Approach: Croft v. Westmoreland County........................................ 998
3. A Narrow Approach: Dupuy v. Samuels ........ 999

III. State v. Kerri S. (In Re Joseph S.)..................... 1001
A. Facts ............................................. 1001
B. Procedural History ................................ 1002
C. Nebraska Supreme Court Holding ................. 1004
D. Analysis of the Nebraska Supreme Court's Opinion ........................................... 1005
1. The Nebraska Supreme Court Erred in Rejecting a Broad Approach ............................. 1005
2. The Elevation of Form Over Function .......... 1007

IV. The Need for Legislative Reforms ..................... 1009

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A. An Opportunity to Provide Representation to Non-court Families ..................................... 1010
B. Economic Solutions to Prevent the Need for Engagement with the Child Welfare System ....... 1012

V. Conclusion ............................................ 1012

I. INTRODUCTION

"[T]he attachment between parent and child forms the basis of who we are as humans . . ." ^[1] Not only is the parent-child relationship socially sacred, it is legally significant. Courts have broadly recognized that parents have a fundamental right to make decisions as to the care and custody of their children. ^[2] This right is a protected liberty interest under the Due Process Clause of the Fourteenth Amendment. ^[3] As a result, there can be no doubt that due process is owed whenever the government seeks to separate a parent from his or her child. Due process principles generally require the right to notice and a hearing before the state initiates the separation. ^[4] In Nebraska juvenile courts, a judge will determine whether the facts of the case fall within the child abuse and neglect statute, ^[5] and parents have the opportunity to respond to the petition by admitting or denying the allegation of maltreatment alleged by the county attorney. ^[6] However, the possibility also exists that the state may effectuate a familial separation without the involvement of the juvenile court in a child welfare case. This arrangement, which curtails due process rights, is a non-court involved child welfare case.

In Nebraska, following a child abuse and neglect investigation, a child welfare case progresses down one of three pathways: the case is filed in juvenile court; the case is closed; or the case is kept open as a non-court involved case. ^[7] In 2020, the Nebraska Legislature defined a "non-court involved [case]" as:

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[A]n ongoing case opened by the department following a report of child abuse or neglect in which the department has determined that ongoing services are required to maintain the safety of a child or alleviate the risk of future abuse or neglect and in which the family voluntarily engages in child protective services without a filing in a juvenile court.

Non-court arrangements allow for increased flexibility and an offering of family-specific voluntary services, but at what cost? Non-court cases bypass procedural protections typically provided to a family involved in juvenile court proceedings. ^[8] While avoiding unnecessary home removals is a noble policy goal, the lack of clarity as to what constitutes non-court involved cases as well as a lack of regulation and oversight has increasingly become a cause for concern. Child welfare advocates and stakeholders have questioned the voluntary nature of non-court arrangements, the safety of the placements, and the lack of services and supports provided to children and families in non-court involved living arrangements. Additionally, because non-court arrangement terms, standards, and procedures are unclear and uncodified, there is a risk that parents who "voluntarily" participate in these arrangements without knowing or understanding the implications will unintentionally undermine their own procedural due process protections.

The Nebraska Supreme Court recently held that procedural due process protections only attach for parents in non-court arrangements when the state causes a familial separation through explicit agency coercion. ^[9] The Court's holding is consistent with the narrow approach of the Sixth ^[10] and Seventh Circuits ^[11] in determining when a family's due process rights attach in non-court involved child welfare cases. This narrow approach may be contrasted with the broader approach of the Third Circuit, ^[12] which holds that due process protections attach whenever the state alters the custodial relationship between a parent and child. This Comment will argue that the broad standard of the Third Circuit creates stronger protections for families and is easier for courts to apply. Additionally, a legislative solution is needed to bring this frequently used practice out of hiding through codification.

Part II of this Comment will provide relevant background information including the benefits and detriments of non-court arrangements, data quantifying their increased use by the state, and a comparison of

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both sides of the circuit split regarding when procedural due process rights attach in non-court settings. Part III will provide the facts and holding of the recent Nebraska Supreme Court case State v. Kerri S., which followed the Sixth and Seventh Circuits' jurisprudence and denied the due process protections the Nebraska Court of Appeals had previously granted to the parent engaged in a non-court involved child welfare arrangement. ^[13] Finally, Part IV will propose legislative solutions to provide heightened standards and procedures in non-court cases.

II. BACKGROUND

A. The Rise of Non-court Involved Cases in Nebraska's Child Welfare System

Only a few years ago, Nebraska removed children from their homes at a rate twice the national average. ^[14] The goal of reducing the number of children in the state's foster care system was first pursued in 2006 by then Governor Dave Heineman. ^[15] A few years later, a 2008 report from the Department of Health and Human Services (the department) mentioned the goal of reversing the proportion of out-of-home to in-home placements of children involved in the state's child welfare system; this policy goal became known as "flipping the pyramid." ^[16] Child welfare advocates cautioned against "flipping the pyramid," as reform should not be centered on percentages of children being in one place rather than another. ^[17]

Since the goal of "flipping the pyramid" was announced by the department and the Governor, a flip has indeed occurred. Today the state has the same number of children involved in non-court arrangements as are involved in child welfare cases formally filed in juvenile court. ^[18] Despite its shadowy existence in Nebraska statutes and regu-

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lations, the department widely effectuates non-court involved cases. ^[19] In 2011, 63% of child welfare cases started with an entry in a court process, and in 2018, those numbers reversed with 64% of children entering Nebraska's child welfare system through a non-court case. ^[20] Child welfare stakeholders have commented on the substantial increase in the use of voluntary cases in recent years. ^[21] The Inspector General of Nebraska Child Welfare stated that the increase in serving families through non-court cases instead of court cases contributed to "an uneasiness permeating across our state regarding the welfare of children." ^[22]

B. How a Hotline Call Becomes a Non-court Case

To appreciate the distinction between court involved and non-court involved child welfare cases, one must understand the origins of any child welfare case. The Department of Health and Human Services is the state agency that provides children and family services in Nebraska. ^[23] The department aims to respond to reports of child maltreatment in the least intrusive manner while still providing the appropriate level of service necessary to meet the needs of the family. ^[24]

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Child welfare policy on both a state and national level has long reflected a singular focus on safety. ^[25] In Nebraska, allegations of child maltreatment are screened at the Child Abuse and Neglect Hotline for initial assessment. ^[26] Through this investigation, the department gathers evidence to determine whether the allegation of child abuse and neglect is...