43-254. Placement or detention pending adjudication; restrictions; assessment of costs.

Pending the adjudication of any case, and subject to subdivision (5) of section 43-251.01, if it appears that the need for placement or further detention exists, the juvenile may be (1) placed or detained a reasonable period of time on order of the court in the temporary custody of either the person having charge of the juvenile or some other suitable person, (2) kept in some suitable place provided by the city or county authorities, (3) placed in any proper and accredited charitable institution, (4) placed in a state institution, except any adult correctional facility, when proper facilities are available and the only local facility is a city or county jail, at the expense of the committing county on a per diem basis as determined from time to time by the head of the particular institution, (5) placed in the temporary care and custody of the Department of Health and Human Services when it does not appear that there is any need for secure detention, except that beginning October 1, 2013, no juvenile alleged to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 shall be placed in the care and custody or under the supervision of the Department of Health and Human Services, or (6) beginning October 1, 2013, offered supervision options as determined pursuant to section 43-260.01, through the Office of Probation Administration as ordered by the court and agreed to in writing by the parties, if the juvenile is alleged to be a juvenile described in subdivision (1), (2), (3)(b), or (4) of section 43-247 and it does not appear that there is any need for secure detention. The court may assess the cost of such placement or detention in whole or in part to the parent of the juvenile as provided in section 43-290.

If a juvenile has been removed from his or her parent, guardian, or custodian pursuant to subdivision (2) of section 43-248, the court may enter an order continuing detention or placement upon a written determination that continuation of the juvenile in his or her home would be contrary to the health, safety, or welfare of such juvenile and that reasonable efforts were made to preserve and reunify the family if required under section 43-283.01.

Source

Annotations

1. Detention

2. Burden of proof

3. Reasonable efforts

1. Detention

A detention hearing is a parent's opportunity to be heard on the need for the removal and the satisfaction of the State's obligations under section 43-283.01, and it is not optional when a child is detained for any significant period of time. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

A temporary detention order, entered after a hearing pursuant to section 43-247(3)(a), is a final, appealable order. In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).

Although an ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time is not final, an order under this section and subsection (3)(a) of section 43‑247 after a hearing which continues to keep a juvenile's custody from the parent pending an adjudication hearing is final and thus appealable. In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002).

Although an ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time is not final, one entered under this section, after a hearing which continues to keep a juvenile's custody from the parent pending an adjudication hearing to determine whether the juvenile is neglected, is final and thus appealable. In re Interest of Cassandra L. & Trevor L., 4 Neb. App. 333, 543 N.W.2d 199 (1996).

State did not meet statutory requirements to justify child's continued detention pending adjudication where there was no evidence showing that it would be contrary to the juvenile's welfare to remain in her home pending adjudication and no evidence regarding any efforts made by the State to prevent the need to remove the child. In re Interest of Cherita W., 4 Neb. App. 287, 541 N.W.2d 677 (1996).

2. Burden of proof

Continued detention pending adjudication is not permitted under the Nebraska Juvenile Code unless the State can establish by a preponderance of the evidence at an adversarial hearing that such detention is necessary for the welfare of the juvenile. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).

To sustain the continued temporary custody of a child, the State must prove the requirements of this section by a preponderance of the evidence. In re Interest of Borius H. et al., 251 Neb. 397, 558 N.W.2d 31 (1997).

The State must prove by a preponderance of the evidence that the custody of an alleged dependent or neglected juvenile should be in the Department of Social Services pending adjudication. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991).

3. Reasonable efforts

The Legislature intended that the issue of reasonable efforts required under section 43-283.01 must be reviewed by the juvenile court (1) when removing from the home a juvenile adjudged to be under subsections (3) or (4) of section 43-247 pursuant to section 43-284, (2) when the court continues a juvenile's out-of-home placement pending adjudication pursuant to this section, (3) when the court reviews a juvenile's status and permanency planning pursuant to section 43-1315, and (4) when termination of parental rights to a juvenile is sought by the State under subsection (6) of section 43-292. In re Interest of DeWayne G., Jr. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).

Provision in this section which requires the State to show that reasonable efforts have been made to prevent the need for a juvenile's removal applies only when the juvenile is taken into temporary custody without a court order under the authority of section 43-248(3). Thus, where a juvenile is taken into custody pursuant to a juvenile court order, this section does not apply. A detention order issued under section 43-247(3)(a) and this section after a hearing which continues to withhold the custody of a juvenile from the parent pending an adjudication hearing to determine whether the juvenile is neglected is a final order and thus appealable. Thus, where an appeal from such an order has been perfected, a trial court is without jurisdiction to terminate parental rights until resolution of the parent's appeal from the original detention order regarding that child. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).